IN THE ELRC ARBITRATION
BETWEEN: ELRC 66-24-25GP

BENARD MOTLOUNG “the Applicant”
and

DEPARTMENT OF HIGHER EDUCATION ANAD TRAINING – GAUTENG
TVET SEDIBENG COLLEGE “the Respondent”

ARBITRATION AWARD

Date of award: 05 August 2024
Gcina Mafani
ELRC Arbitrator

Education Labour Relations Council
ELRC Building
261 West Avenue
Centurion
Tel: 012 663 0452
Fax: 012 643 1601
E-mail: gen.sec@elrc.co.za
Website: www.elrc.org.za

1. DETAILS OF HEARING AND REPRESENTATION

1.1. The matter was set down for arbitration on the 12th of June 2024 The arbitration proceeded and was concluded on the same day.
1.2. The arbitration was held under the auspices of the Education Labour Relations Council (ELRC) in terms of Section 186 (5) (a) (1) Of the Labour Relations Act (the LRA). The hearing was conducted virtually and digitally recorded.
1.3. The Applicant Bernard Motloung attended the hearing and was represented by Ms. Anneline De Beer of Mc Loughlin Porter Incorporated
The Respondent was also present and represented by Mr. Duke Nyathi
1.4. Before the start of the arbitration hearing both parties submitted their bundles. The Respondent submitted her bundle of documents which was later marked as Exhibit “A” The Applicant also submitted theirs which was later marked Exhibit “B”
1.5. The parties agreed to file closing arguments by the close of business hours on the 19th June 2024.
1.6. The submissions of both parties were carefully considered, but will not be repeated here as contents basically mirror what was put to parties during the leading of evidence and cross examination in the arbitration.

2. FACTUAL BACKGROUND

2.1. The Applicant is currently employed as a senior lecturer at the Sedibeng College TVET.
2.2. He has been employed with the Respondent since 2011.
2.3. Since the Applicant was employed, he was not aware of a collective agreement which has been in effect since 2003 which provides for the recognition of practical experience of educations gained outside public education — i.e., Collective Agreement 5 of 2003. A copy of the collective agreement can be found in the Applicant’s bundle at page 8

2.4. The Applicant was informed of the Collective Agreement on a trip to China and was furnished with a copy during 2020.
2.5. Once he received a copy, he approached the HR department who confirmed that the Collective Agreement was in effect.
2.6. After receiving confirmation, the Applicant applied for his recognition of practical experience as an artisan electrician from 1988 — 1997. The Applicant submitted all his documents, which included the Applicant’s certificate of service from a previous employer dated the 2nd of August 2022, namely Iscor that indicated he was employed as an artisan electrician from 25 July 1988 to 31 December 1997 and was retrenched.
2.7. Six (6) months after submission of his application, the Applicant did not receive any feedback from the Respondent and he started making inquiries. It was only after making an inquiry that he was informed that his practical experience could not be recognized because the Respondent needed a job description, salary advice and appointment letter from his previous employer (Iscor).
2.8. The Applicant made enquiries to Iscor now Arcelor Mittal, however was unable to obtain the relevant documentation. Mr. Nyathi, Assistant Director: Labour Relations, Sedibeng TVET College, also attempted to assist the Applicant in obtaining the necessary information to no avail.
2.9. Both parties were advised that the documents have been archived.
2.10. The Applicant’s legal representative, Mrs. de Beer, contacted Arcelor Mittal telephonically and requested the information telephonically as well as per email. A copy of the request can be found on page 16 of the Applicant’s bundle.
2.11. The arbitration is in respect of a referral by the Applicant of an alleged unfair labour practice as provided for in section 186(5)(a)(i) of the Labor Relations Act 66 of 1995 (LRA.)
2.12. The Applicant is seeking that the Collective Agreement be complied with and his salary adjusted with retrospective effect from August 2022

3. ISSUE TO BE DECIDED
3.1. The Commissioner is required to determine whether the Applicant is eligible for recognition of experience and payment thereof as per the Collective Agreement 5 of 2003.
3.2. Whether the Applicant has complied with the requirements.

4. APPLICANT’S EVIDENCE AND ARGUMENTS

4.1. During the Applicant’s testimony he confirmed that when he initially applied for the position of the lecturer, he submitted his trade test confirming that he successfully completed his training as an artisan electrician and that the Respondent had a copy of same on his employee file.
4.2. The Applicant further testified that he is currently lecturing in the engineering department and is doing artisan work with the learners. He confirmed that it is the exact same he was doing when he was working for Iscor/Mittal.
4.3. During cross examination Mr Nyathi asked the Applicant what his job description was and what his position entailed. The Applicant testified that he was doing electrical work and stated that it is quite obvious that an electrician will be doing electrical work and will not be doing plumbing duties when he is a qualified electrician.
4.4. It is furthermore noted that the certificate of service explicitly states his capacity to be of an artisan electrician.
4.5. The Applicant further testified that he would not have been appointed in the position of lecturer in the engineering department if the Respondent was not satisfied with and/or recognised his qualifications and practical experience. The Respondent has his Trade Certificate in their file as he was an employee with the Respondent.

5. RESPONDENT’S EVIDENCE AND ARGUMENT
Mr Motjopye Moshotwane

5.1. Mr. Motjopye testified on behalf of the Respondent and confirmed that he was employed as an Assistant Director: Conditions Services HR.
5.2. He further confirmed that the collective agreement was in effect but the Respondent could not recognise the Applicant’s practical experience as he did not submit a job description, salary advice or appointment letter which is incomplete and did not comply with the PAM documents (Annexure TVET23 of the Respondent’s bundle).
5.3. Mr Motjopye testified that it is necessary to have this information to confirm the relevant experience as well as where to place the official and in terms of what notch.
5.4. Mr Motjopye was referred to paragraph B8.4.3.1 (c) and testified that no experience will be recognised for the period between July 1996 — March 2003.
5.5. Mr Motjopye also referred to paragraph B.8.4.3 of TVET 23 in the Respondent’s bundle which refers to appropriate experience refers to working experience, which in the opinion of the employer, developed the person directly or appositely in all respects regarding knowledge, skills and attitude, for holding an educator’s post.
5.6. Mr Motjopye also testified that he will not and cannot flout the Applicant’s application.
5.7. Mr Motjopye also stated that it is not unreasonable to expect a company and/or the Applicant to retain documents from 1988 up until to date for the possibility of applying for a position as a lecturer.

6. ANALYSIS OF EVIDENCE

6.1. Section 23 of the Labour Relations Act, 1995 (“LRA”) stipulates that collective agreements are binding on the parties.
6.2. When interpreting collective agreements arbitrators should follow the judgment of the LAC in North East Cape Forests v SAAPAWU & others4 “A collective agreement in terms of
6.3. the Act is not an ordinary contract and the context within which 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 and applying collective agreements. The fact is that a collective agreement is a written memorandum which is meant to reflect the terms and conditions to which partiers have agreed at the time that they concluded the agreement. The courts and arbitrators must therefore strive to give effect to that intention.
6.4. Western Cape Department of Health v Van Wyk & others the court held that the principles applicable to the resolution of interpreting collective agreement disputes are as follows:
6.5. When interpreting a collective agreement, the arbitrator is enjoined to bear in mind that a collective agreement is not like an ordinary contract, and he/she is therefore required to consider the aim, purpose and all the terms of the collective agreement;
6.6. The primary objects of the LRA are better served by an approach which is practical to the interpretation of such agreements, namely to promote the effective, fair and speedy resolution of labour disputes. In addition, it is expected of the arbitrator to adopt an interpretation and application that is fair to the parties.
6.7. A 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.
6.8. The courts and arbitrators must therefore strive to give effect to that intention, and when tasked with an interpretation of an agreement, must give to the words used by the parties their plain, ordinary and popular meaning if there is no ambiguity. This approach must take into account that it is not for the Courts or arbitrators to make a contract for the parties, other than the one they in fact made.
6.9. The respondent argued that the applicant failed to submit the required documents required to process the application. These documents being the job description and appointment letter indicating the notch or annual salary.
6.10. The Applicant in his application included proof of his practical experience between 1988 and 1977 by way of certificate of service which indicates that he was employed as an artisan electrician and performed his duties as such.
6.11. The respondent is bound by the terms of the Collective Agreement in terms of S23 of the LRA
6.12. It is therefore my finding that the Applicant has demonstrated that he qualifies for the recognition of experience.

7. RESPONDENTS QUANTIFICATION SUBMISSIONS
7.1. Mr. TB Motloung was appointed for first time 1999/09/01 By the Department of the Basic Education as Teacher RVQ 13 and Migrated to Department of Higher
7.2. Education and Training 2015/04/01 as the Education Specialist (Senior Lecturer)
7.3. RQV 14. the starting Notch was R204 102.00, according to PAM paragraph
7.4. B.8.5.4.1 page B-99, it stated that in a case whereby official is appointed on a higher post level, but his previous notch is higher a minimum notch of a promotional post that official must at all times gain six (06) %. Official was not on a higher notch hence there was no recognition of previous experience to be recognized.

8. APPLICANTS QUANTIFICATIN SUBMISSION.
8.1. It was made clear during the online quantification meeting, that the Respondent is of the opinion that the Respondent does not owe any amount to the Applicant.
8.2. However, the Respondent correctly reflected the amount of practical experience to which the Applicant is entitled to, namely:
8.3. His employment with Iscor amounts to seven years and eleven months; and
8.4. His employment with Sedibeng Training Centre amounts to one year, three months and 24 days.
8.5. Thus, in total the amount of years to be given recognition totals to nine years two months and twenty four days (9 year 2 months and 24 days).
8.6. The Respondent, through Mr Motjopye’s testimony, confirmed that Mr Motloung was supposed to be given recognition of his previous practical experience when he commenced with his employment, yet he did not receive it. However, in the same line of reasoning is of the opinion that the Applicant should merely disregard the recognition of his practical experience as he received a promotional appointment and that it would constitute ‘double dipping’.
8.7. Mr Motjopye further testified by given a practical example of his reason. He indicated that if an educator is up for a promotion and a progression simultaneously, the educator will receive the promotion the current year, and will receive his/her progression the follow year.
8.8. This reasoning of Mr Motjopye is illogical as the Collective Agreement clearly and unequivocally states that ALL experience should be given recognition. This reasoning can be seen as a clear attempt to shy away from the Respondent’s obligation and responsibility towards the Applicant in terms of the Collective Agreement.

8.9. THEREFORE

8.10. Auqust 2022- March 2023:
8.11. The Applicants basic salary was R 32 260.50 x 9% = R 2903.45 (should have been added to his salary)
8.12. For the eight months’ salary an amount of R 23 227.60 is due to the Applicant.
8.13. April 2023 — Januarv 2024:
8.14. The Applicants basic salary is R 34 518. 70 x 9% = R 3106.68 (should have been added to his salary)
8.15. For the ten months’ salary an amount of R 31 066.80 is due to the Applicant.
8.16. In total and should the Collective Agreement be applied retrospectively, the total amount of R54 294.40 is owing to the Applicant for not being included in the Collective Agreement.

8.17. I accordingly make the following award

9. AWARD

9.1. The Respondent is ordered to pay an amount of R 54 294.40 the Applicant in recognition of his experience.
9.2. This amount must be paid to the applicant within fourteen (14) days of receipt of this award.
9.3. No order as to costs.

GCINA MAFANI
Arbitrator 05 August 2024
ELRC 66-24-25 GP