03 October -ELRC1470-24/25GP

Case Number: ELRC1470-24/25GP
Commissioner: PAUL PHUNDU
Date of Award: 30 SEPTEMBER 2025

In the ARBITRATION between

SAOU obo Elzane van Bosch
(Union/Applicant)

And

Department of Education – Gauteng
(Respondent)

Union/Applicant’s representative: Ms. Gwendy Behr
Union/Applicant’s address:

Telephone:
Telefax:
E-mail:

Respondent’s representative: Mr Matoditodi Modise
Respondent’s address:

Telephone:
Telefax:

DETAILS OF HEARING AND REPRESENTATION

This is an arbitration award issued in terms of Section 138 of the Labour Relations Act 66 of 1995 (as amended) and hereinafter referred to as the LRA. The matter was set-down for arbitration in terms of section 69 of the Council’s Dispute Resolution Rules.
This matter is about the Interpretation and Application of a Collective Agreement 1 of 2012. The Resolution is about the Occupation Specific Dispensation for Education Therapists, Counsellors and Psychologists employed in Public Education.
The arbitration was conducted virtually via Ms Teams on 4 and 5 September 2025.
The Applicant was present at the arbitration and she was represented by, Ms Gwendy Behr, Union Official from the Union called SAOU. The Respondent was represented by, Mr Matoditodi Modise, Its Employee Relations Official.
The proceedings were conducted in English and were digitally recorded. I also kept handwritten notes.
Both parties agreed, exchanged and accepted bundles of documents into evidence, to which neither party recorded any objection.
Written closing arguments was submitted by the Applicant only and these arguments have been considered before the rendering of the arbitration award. ISSUE TO BE DECIDED
This matter was referred to the ELRC as a dispute in terms of Section 24(2) of the LRA, namely the Interpretation and Application of a Collective Agreement, specifically Collective Agreement 01/2012.
I am required to determine whether the applicant, an Education Therapist, qualified to have been translated to the post of Educational Counsellor (School-based-Grade 3) in terms of ELRC Collective Agreement 1/2012, as from 1 January 2013, being the date of implementation of the Collective Agreement.
The Applicant requested that should I find in her favour, that the Respondent be ordered to pay her retrospectively from 01 January 2013, in accordance with Collective Agreement 01/2012, in respect of the post: Education Counsellor (School-based – Grade 3), inclusive of all applicable increments and benefits.
BACKGROUND TO THE ISSUE
The Applicant is in the employ of the Department of Education as Therapist at Krugerlaan Secondary School.
On 22 January 2025, the Applicant became aware that she ought to have been translated from Education Therapist to Counsellor.
On 30 January 2025, she lodged a grievance and the outcome was not satisfactory.
On 1 April 2025, the Applicant declared a dispute and referred it to the Council.
Conciliation failed and the certificate of non-resolution of the dispute was issued. The matter proceeded to arbitration. In terms of relief, the Applicant wished to be translated into the correct career stream of Educational Counsellor / Psychometrist and retrospective compensation in terms of her salary notch and grade progression.
The Applicant submitted that the Collective Agreement drew a distinction between education therapists (physiotherapists, occupational therapists and speech therapists), counsellors and psychologists and in line with provisions of the Collective Agreement, was applied on 01 January 2013.
In essence, the Applicant argued that she ought to have been translated to the post of Education Psychologist (School-based – Grade 2) on 01 January 2013, when the Collective Agreement 01/2012, was implemented.
The Respondent disputed the Applicant’s claim, arguing that the Collective Agreement made provision for three career streams, where translations occurred within the relevant career streams and as such, the Applicant was correctly translated in line with the provisions and intent of the Collective Agreement.
The parties agreed that the following were common cause issues: –

a) The Applicant was appointed by the Respondent on 1 July 2012 as a Therapist.
b) The Applicant has qualifications or Behaviours Psychology Degrees (Honours and Masters) that qualifies her as a Counsellor.
c) The Applicant is an HPCSA registered Counsellor and Psychometrist.
d) From 1 February 2007 to 30 June 2012 the Applicant was appointed by the School Governing Body as a registered Counsellor and Psychometrist at Vaal High School.
e) The Applicant met all the educational requirements that are needed in order for one to be a Counsellor.

SUMMARY OF THE PARTIES’ EVIDENCE AND ARGUMENT.

The LRA requires that brief reasons be given in an award, therefore the following is a summary of the relevant evidence given under oath and submissions made in argument all of which is not reflected in this award but had nevertheless been taken into account. THE APPLICANT’S SUBMISSIONS
Ms Elzane van Bosch testified, under oath, that she is employed by the Respondent as Education Therapist at Krugerlaan High School. Ms Bosch confirmed that Krugerlaan is a special school.
According to Ms van Bosch, Therapists and Psychologists are employed as specialists.
Ms van Bosch stated that Collective Agreement 1 of 2012 provides career pathing streams and pay progression. This agreement was initially implemented on 7 September 2012. According to the Applicant, The objective of this Collective Agreement was to introduce specific remuneration in line with employees’ specific experience and qualifications and the reason for this was to recruit and retain specialists within the Gauteng Department of Education.
In the ELRC Collective Agreement 01 of 2012, for a person to be appointed in the career stream of a school-based Education Counsellor/ Psychometrist, they must meet the following requirements:
That the requirements in terms of the Collective Agreement 01/2012 to receive the improved renumeration was to be registered as a counsellor or psychometrist with the HPCSA and to have the relevant years’ experience and qualification. All of which she has.
Ms Elzane van Bosch indicated that she has experience and qualifications that should allow the Respondent to translate her from Education Therapist to Counsellor / Psychometrist as per the provisions of the Collective Agreement 1 of 2012. She is also a registered Counsellor and Psychometrist with HPCSA.
Ms van Bosch further indicated that 8 years relevant experience was required in order for one to be translated into a Counsellor position. She has 5 years’ experience which is a minimum requirement as well as Degrees in Psychology which qualifies her to be a Counsellor.
Ms van Bosch stated that she is currently performing Education Counsellor tasks.
Ms van Bosch indicated that Krugerlaan School is in terms of Education White Paper 6 regarded as a Resource Centre since 2013. A Resource Centre may have other professionals and specialists appointed at the school. On 22 June 2021 Gauteng Department of Education circulated an Internal Memorandum No. 32/2021 where all Therapists, Psychologists and Psychometrists/ Counsellors were requested to submit all relevant documentation so that grade progression in accordance with the ELRC Collective Agreement 01 of 2012 can be implemented.
Ms. van Bosch further stated that she was incorrectly translated into Education Therapist instead of Educational Counsellor as this was in line with her scope of practice and her qualifications.

The Applicant claims that she ought to have been translated to the post of Education Counsellor (school-based – Grade 3), when the Collective Agreement 1/2012 was implemented, being 01 January 2013.

Ms van Bosch concluded by stating that the Respondent must comply with the Collective Agreement and translate her from being an Education Therapist to Counsellor / Psychometrist.
Under cross-examination Ms van Bosch confirmed that she was appointed as Education Therapist after applying for this position in July 2012.
Ms van Bosch stated that the School Post Establishment makes no reference to Counsellor position being available. However, she was invited by the Respondent to attend numerous Counsellor meetings over the years.
She also confirmed that during her 13 years of being appointed at the school she has done over 400 assessments for the Gauteng Department of Education, one such assessment would cost R 8000 per assessment if done privately. The Applicant confirms that due to her dual registration as a counsellor and psychometrist she is permitted to conduct these assessments and is regularly asked by the Respondent to conduct these assessments. This was never rebutted by the Respondent.
Ms. van Bosch confirmed that she is currently on salary notch 454 191 but if she was translated into the correct career path as per the Collective Agreement she should be a Grade 03 notch 02 counsellor by now with a salary notch of 881 382.
Ms. van Bosch raised this issue in 2025. She confirmed that she has been raising this issue and sending in her documents since 2013. The Respondent also was in contact with her requesting documents from her but nothing came of it.
Ms van Bosch stated that the Respondent must place her in a correct career path and translate her as per the provisions of the Collective Agreement. She said Post Establishment has got nothing to do with the implementation of the Collective Agreement. The Collective Agreement does not speak of re-appointments, conversions or post establishments. The Collective Agreement speaks of translating health professionals into the correct career paths so that they may be remunerated accordingly.
Ms Emma Mangope testified, under oath, that she is employed by the Respondent as Provincial Co-ordinator for all Counsellors in the Province. She said she works with the Applicant on a daily basis and regard her as a Counsellor.
The Applicant submit quarterly reporting concerning Counselling to her on a regular basis. Furthermore, the Applicant’s names appears on a data base for Counsellors in the Province. The Applicant’s scope of work is that of a counsellor & psychometrist.
Ms Mangope stated that the Applicant is a registered Counsellor/ Psychometrist and she provides Counselling to learners. She further stated that the Applicant should have been confirmed by the Respondent as Education Counsellor.
Ms Mangope concluded by stating that she did submit a list of qualifying Counsellors, including the name of the Applicant to the Respondent asked that the Counsellors positions be formally confirmed and translated as Counsellors and they be remunerated accordingly. According to Ms Mangope, the Respondent failed to respond to the request.
Under cross-examination Ms Mangope confirmed that the Applicant was appointed as Education Therapist.
Ms Mangope stated that the Applicant qualified to be translated into Education Counsellor. She stated that the Principal of the School where the Applicant is rendering services and Human Resources of the Respondent should have ensured that the Applicant was translated in terms of the provisions of the Collective Agreement 1 of 2012.
Ms Mangope stated that the Collective Agreement is not applied retrospectively and should simply be implemented from the date it was adopted and signed by all the relevant stake-holders or parties. THE RESPONDENT SUBMISSIONS
Mr. Seeko Mareletse testified, under oath, that he is employed by the Respondent as Director-Human Resources. He stated that his role was to implement Collective Agreements and conditions of service.
Mr Mareletse conceded that he was aware of the Applicant’s case. However, he does not believe that the Applicant was eligible for translation from Education Therapist to Educational Counsellor or Psychometrist. He stated that the objective of the Collective Agreement 1 of 2012 was not to convert employees from their current positions into higher position. However, the Agreement was there to ensure that employees are translated within their career path.
Mr. Mareletse disagreed with Ms Mangope’s view and indicated that she was not a specialist and the Respondent did not apply and implement the Collective Agreement incorrectly.
Mr. Mareletse further indicated that does not have the position of Education Counsellor in its post establishment of the school.
The current contract between the Applicant and Respondent is binding. The contract simply recognises the Applicant as Educational Therapist and not Educational Counsellor.
Under cross-examination Mr. Mareletse confirmed that the Applicant was appointed on 1 July 2012 as a Therapist.
Mr Mareletse conceded that the Educational Counsellor was one of a career path in terms of the Collective Agreement that the Educational Therapist could be translated into.
Mr Mareletse stated that the position of Educational Counsellor was not on their Post Structure and the Collective Agreement does not provide for a change in Post Structures at schools or the Post Structures should be disregarded.
Mr Mareletse maintained that the Applicant was not entitled to translation and she is presently occupying the correct position. He said in order for the Applicant to qualify, there must be a position advertised, then she could apply and be considered for promotion. At this stage, none of that has happened.
Mr Mareletse does not believe that the Respondent has misinterpreted and incorrectly applied the Collective Agreement when it came to the Applicant’s situation. The Application must be dismissed.
Mr Mareletse further indicated that Krugerlaan School does not qualify to have an Educational Counsellor.

ANALYSIS OF EVIDENCE AND ARGUMENT

The objective of the Collective Agreement is to introduce an occupation specific remuneration and career progression dispensation for Physiotherapist, Speech Therapists, Occupational / Education Therapists, Counsellors and Psychologists employed in Public Education.
Section 23 of the LRA provides that the collective agreement is binding on the parties to it. Not all provisions of the LRA may be overridden by a collective agreement. However contracts of employment may not disregard or waive the provisions of a collective agreement, (section 199 LRA).
It was not disputed by the Respondent that In the ELRC Collective Agreement 01 of 2012, for a person to be appointed in the career stream of a school-based Education Counsellor/ Psychometrist, they must have appropriate qualification that allows registration with the HPCSA as a Counsellor or Psychometrist.
I am satisfied and convinced that the Applicant is a qualified Counsellor who has all the necessary skills, experience and qualifications.
I am satisfied that the Applicant was allowed to conduct assessments and she is regularly asked by the Respondent to conduct these assessments as a Counsellor and this was never rebutted nor disputed by the Respondent.
I am satisfied and accept that the Applicant has met the requirements in terms of the Collective Agreement 01/2012.
I accept Ms. Mangope’s testimony that the Applicant’s scope of work is that of a counsellor & psychometrist. The reason I say so is because this was not disputed by the Respondent when it was put to it.
I accept the Respondent’s testimony that Educational Counsellor was one of the career paths in terms of the Collective Agreement that the Educational Therapist could be translated into.
I am satisfied that the evidence led proved to me that the Applicant has the appropriate qualifications, experience and scope of work she is doing was that of a Counsellor & Psychometrist.
It is my finding that the Respondent has incorrectly interpreted and applied Collective Agreement 1 of 2012.
The evidence before me showed and proved that the Respondent has incorrectly applied and implemented Collective Agreement 1 of 2012 especially when it comes to the translation of the Applicant and placing her into the correct position and salary notch.

In CUSA v Tao Ying Metal Industries and Other [2009] 1 BLLR 1 (CC) at paras [55] and [56] where the Constitutional Court emphasized the importance and the rights that Collective Agreements give effect to as follows: •
“[55] The issues raised in this case are matters of public interest. This case also concerns the enforcement of a bargaining council agreement which sets out minimum wages and other conditions of employment and requires us to apply the provisions of the LRA. The right of every trade union and every employer’s organisation and employer to engage in collective bargaining is entrenched in section 23(5) of the Constitution. The concomitant of the right to engage in collective bargaining is the right to insist on compliance with the provisions of the collective agreement which is the product of the collective bargaining process.”

[56] Compliance with a collective bargaining agreement is crucial not only to the right to bargain collectively through the forum constituted by the bargaining council, but it is also crucial to the sanctity of collective bargaining agreements. The right to engage in collective bargaining to enforce the provisions of a collective agreement is an especially important right for the workers who are generally powerless to bargain individually over wages and conditions of employment. The enforcement of collective agreements is vital to industrial peace and it is indeed crucial to the achievement of fair labour practices which is constitutionally entrenched. The enforcement of these agreements is indeed crucial to a society, which, like ours, is founded on the rule of law.”

AWARD

The Applicant, Elzane van Bosch, has succeeded to discharge the onus that the Respondent, the Department of Education: Gauteng had incorrectly applied and implemented Collective Agreement 1 of 2012.
Based on the interpretation of Collective Agreement 01/2012, the Applicant ought to have been translated to the post of Education Counsellor (school-based – Grade 3), when Collective Agreement 01/2012 was implemented, being 01 January 2013.
The Respondent, the Gauteng Department of Education, is ordered to translate the applicant, Ms Elzane van Bosch to the post of Education Counsellor (school-based – Grade 3) in accordance with the provisions of Collective Agreement 01/2012with effect from 01 January 2013. This must be complied with on or before the 24 October 2025.
The Respondent is further ordered to pay the applicant retrospectively in accordance with Collective Agreement 01/2012 in respect of the post: Education Counsellor (school-based – Grade 3) inclusive of all applicable increments and benefits. This must be complied with on or before the 24 October 2025.
No order of costs is made in respect of these proceedings.