Case Number: ELRC 1364-25/26 GP
Commissioner: Ramadimala Jacky Mateta
Date of Award: 13 July 2026

In the MATTER between

Tshikolomo Mulalo
Employee

And

Central Johannesburg TVET College
(Respondent)

Union/Applicant’s representative: Mr. Mokotedi N.C (NEHAWU)
Union/Applicant’s address:

Telephone:
Telefax:
E-mail:

Respondent’s representative: Mr. Nkambule T.J (LR Deputy Manager)
Respondent’s address:

Telephone:
Telefax:
E-mail:

DETAILS OF HEARING AND REPRESENTATION

1. The arbitration proceedings were held and finalized on the 19th of June 2026 at the Central Johannesburg TVET College’s offices in Parktown Campus.
2. The employee party Mr. Tshikolomo Mulalo Clement (“Applicant” hereinafter) was present and dealt with his matter assisted by Mr. N.C Mokotedi, a representative from NEHAWU.
3. The employer party, Central Johannesburg TVET College (“Respondent” hereafter) was also in attendance and was represented by Nkambule T.J, Labour Relations Deputy Manager of the respondent.
4. The arbitration proceedings followed only an adversarial approach as both parties were sufficiently represented in the proceedings. Bundle of documents were received from both the applicant and the respondent party. The respondent’s bundle was marked bundle R (“R” hereafter) while the applicant’s, was marked Bundle A, (“A” hereafter).
5. After conclusion of the arbitration’s oral evidence, parties requested for the extension and submission of their closing arguments in writing and were given until the 26th of June 2026 to do so. At the conclusion of award, written closing arguments were received from both parties.
6. The proceedings were recorded both electronically and manually. BACKGROUND ISSUES:
7. Parties had concluded their pre-arbitration meeting, and pre-Arb minutes were confirmed. It was agreed that it is not in dispute that the applicant is an employee of the respondent. He was appointed by the respondent on the 1st of July 2021. At the time of the dispute the applicant was occupying the position of a Lecturer, PL 1, earning R23 283.75 per month as basic salary.
8. The applicant had since being on fixed-term contracts which were renewed until to date of the arbitration.
9. The applicant avers that there is a Collective Agreement ELRC No. 2 which requires the respondent to appoint him permanently within its post establishment. The applicant avers that the respondent has failed to correctly interpret and apply the Collective Agreement and therefore failed to appoint him permanently as required by the collective agreement.
10. The respondent contended that the non-appointment of the applicant on a permanent basis is not as result of failure to interpret the collective agreement correctly as the collective agreement does not cover the applicant’s current circumstances.
11. I was therefore required to interpret the collective agreement, determine whether failure by the respondent to appoint the applicant on a permanent basis is a result of wrong interpretation and application of the collective agreement, if so, and make the necessary orders.

WHAT TO BE DETERMINED

15. The applicant has alleged that the respondent’s failure to appoint him on a permanent basis is as a result of the respondent’s wrong interpretation and wrong application of a collective agreement. I was therefore required to interpret the collective agreement and determine as to whether failure by the respondent to appoint the applicant on permanent basis is a result failure to interpret and correctly apply collective agreement, and if found so to determine an appropriate remedy.

SURVEY OF EVIDENCE AND ARGUMENTS

Applicant’s case

Evidence:

16. Mr. Mulalo Clement testified as a witness in his matter. The summary of his evidence is that he confirms the details of appointment as submitted in the pre-Arb minutes. His main contention is that there is a Collective Agreement No. 2 of 2013. He was since on fixed-term contract which were renewed from one after another, starting from A2 to A9, which accordingly proves that since July 2021, he had been engaged by the respondent for unbroken service.
17. It is his believe that the respondent is party to the collective agreement and that they must find a way to implement the collective agreement. The Collective Agreement, A1, item 4.1. states, “Temporary or contractual lecturers who have been employed on a continuous basis in the college establishment for period of 12 months or more and are currently in vacant funded substantive post will be made permanent.”
18. He has been employed by the college for more than 12 months and the respondent failed to make him permanent.
19. Under cross-examination, he agreed that the collective agreement was concluded in 2013 while colleges were still autonomous, independent from Department of Higher Education and Training (DHET). He could however not know when colleges were merged and place under the DHET but, he would not deny that they merged in 2014.
20. He also cannot deny if he was told that after to merger, and in terms of the Continuing Education Act and Training Act, the employer of lecturers became the Minister and any additional staff employed by the college, the employer remained the college council. He was made to read Item 1 of the collective agreement. When asked if the post establishment referred to in the agreement is still existing, he insisted that it is still existing and that he was appointed on the post that was left by the other deceased lecturer. He also insisted that he had PERSAL. When it was put to him that his is not PERSAL but a Pay Number he agreed and conceded. He however argued that he receives payment from the government. He conceded that there is also BAS system in government that is used to pay people other than PERSAL.
21. When it was put to him that the post-establishment that is referred in the collective agreement does no longer exists as the DHET came in took all permanent staff and put them on PERSAL, he said that he was not aware. He also was not aware that there is no one employed permanently on college council post establishment. He argued however, that the college is busy implementing the award that stated lecturers must be made permanent.
    Arguments
22. The applicant’s closing arguments were submitted in writing. For the brevity of the award, I found it not necessary to restate the same. Safe to state that the applicant submitted two letters from the college to NEHAWU stating that issue of temporary lecturers is being discussed with the DHET and also that all submissions were fully considered when finalizing the award. RESPONDENT’s CASE

Evidence

23. Mr. Thokozani Nkambule testified. The summary of his evidence is that he is an employee of the respondent employed by Department of Higher Education and Training as an Assistant Director, Labour Relations based at Central Johannesburg TVET College.
24. He referred to page 12 to 15 of R and stated that it is a Collective Agreement No. 2 of 2013. He referred to page 13 of R and read a paragraph above all contents as follows: “PERMANENT APPOINTMENT OF SERVING TEMPORARY AND CONTRACT LECTURERS WHO HAVE BEEN IN THE EMPLOY OF FURTHER EDUCATION AND TRAINING COLLEGES FOR A PERIOD OF 12 MONTHS OR LONGER.”
25. He testified that the agreement was concluded while colleges were still enjoying autonomous status and before a merger. In 2015, colleges were merged and came under the Department of Higher Education and Training. That resulted in a new post establishment in PERSAL and introduced permanent staff. The post establishment on college council fell off.
26. The Continuing Education Act amended the previous Act to the effect that the college council post establishment became additional structure to the approved structure of the DHET. The college structure caters for additional staff who are not permanent, normally due to over enrolment of students. Once the college over enrolled students, it requires that additional staff be appointed on temporary basis which is not funded but uses allocated funds for operational matters.
27. Item 1, Purpose, read as follows: “The purpose of this agreement is to effect, within the approved post establishment of the college, the permanent appointment of serving temporary and contract lecturers who have been employed in the College establishment for a period of 12 months or more on continuous basis.”
28. When the collective agreement was concluded, the colleges were still enjoying their autonomous status with their own permanent structure and permanent staff. After the merger and incorporation of the colleges into DHET, permanent staff was then moved into DHET, and the employer became the Minister of DHET. The previous permanent post establishment of the college then fell off. When Item 1 of the collective agreement refers to post establishment of the college in 2013, it referred to that permanent structure that was collapsed during merger. It is no longer existing. The drafters of the collective agreement did not have the merger of 2015 in mind.
29. The collective agreement is not talking to current situation but talking about the situation that prevailed before merger. In there the college was supposed to make permanent all temporary or contract lecturers who were in the college employment for more than 12 months.
30. Item 2.3 of the agreement also refers to FETCBU. That was Further Education and Training Colleges Bargaining Unit. That also is longer in existence. It also refers to FETCEO which was then Further Education and Training Colleges Employers Organisation which also does no longer exist. Same as funded substantive posts in college, they are no longer in existence. The college at present only has additional structure which comes as a result of over enrollment. It is for that reason that the respondent submits that the collective agreement no longer applies to current of colleges.
31. Under cross-examination, he stated that section 20 of the Continuing Education Act provides for employers of lecturers where in the employers of PERSAL staff is the Minister of DHET while the college council is the employer of additional staff. He stated that when vacancies arise in the structure, Public Services Act Recruitment and Selection processes will be evoked.
32. When asked as to who informs ELRC of the changes he stated that bargaining unit in the DHET is engaging. He denied the notion that the college is partially implementing the awards. He stated that the college is only engaging in trying to find a solution to the illegible employees. He denied the applicant’s version that he is on substantive funded post. He agreed that the applicant is qualified lecturers with SACE registration.
33. Mr. Sabelo Plaatjie testified. The summary of his evidence is that he is an Assistant Director: Human Resources Management and Development. He referred to page 12 to 15 of R stating that it is a Collective Agreement concluded in the ELRC in 2013 while the colleges were still enjoying their autonomy. The autonomy ended when colleges merged and integrated into the DHET.
34. He referred to page 16 of R and explained that they are Further Education and Training Colleges Act passed in 2006 and Continuing Education and Training Act which amended the above.
35. He referred to section 20 of the FETC Act and read it subsection (1)(2) and (3) as follows: “The college is the employer of all lecturers and support staff. (2) Subject to this Act, the Basic Conditions of Employment Act, the Employment Equity Act, and any other applicable law, the council must establish posts for lecturers and support staff. (3) The council must appoint and remunerate staff from the funds allocated in accordance with norms and standards contemplated in section 23 and other income received by the college from other sources”
36. He also read page 21 of R, section 20(1)(6) of the Continuing Education and Training Act as follows: (1) “The staff of the public colleges consists of persons appointed(a) the Minister in terms of the Public service Act in posts established on the organizational structure of the Department and identified as posts to the respective colleges and (b) the council in posts establishment in addition to posts contemplated in (a)”. He testified that currently the state is that Minister is the employer of all employees on the post establishment structure of the Department while the college council is the employer of those on post establishment created by the council as additional.
37. The structure that is referred to in the collective agreement no longer exists. It is impossible to appoint person on a post establishment that is no longer existing.
38. Under cross-examination, he agreed that in 2013, the collective agreement was still applicable. He agreed that migration happed only in April 2015. He could not explain however what happed to the agreements that were reached before the merger. He however argued that the collective agreement is no longer applicable to the current form of the college. He stated that if ELRC orders that people be appointed it shall have erred. He stated that those who had an award are still employed by the college temporarily and on the additional post establishment of the college. He argued that the college is not trying to replace a collective agreement but only applying the Act. He testified that that the college structure from the DHET may not be fully filled unless the college does not exceed the 63% of allocated funds to human resources.

Arguments

39. Closing arguments of the respondent were submitted in writing. For the brevity of the award, I find it not necessary to restate the same in the award. Safe to state that they were fully considered when finalizing the award.

ANALYSIS OF EVIDENCE AND ARGUMENT:

Interpretation of the collective agreement

40. The applicant referred a dispute in terms section 24 of the Labour Relations Act 66 of 1995 (as amended). He contended that the respondent has failed appoint him on a permanent basis while there is collective agreement that compels the respondent to employ lecturers who have been in the employ of the FET college for 12 months and more on a permanent basis. It is the applicant’s contention that his non-appointment is due to the respondent’s wrong interpretation of a collective agreement or wrong application thereof. The respondent’s contention is that there was no wrong interpretation or incorrect application, but only that the collective agreement referred to by the applicant does not apply to the applicant’s circumstances of employment.
41. The applicant in approaching the council thereby seeking a third-party intervention in looking back and trying to ascertain the intentions of the parties at the time of the agreement. The SCA in Maja v Maake and Another (008158/2022) [2024] ZAGPPH 31 agreed that, “interpretation is a process of attributing meaning to the words used in a document, be it legislation, some other statutory instrument, or contract, having regard to the context provided by reading the particular provision or provisions in the light the document as a whole and the circumstances attendant upon its coming into existence. Whatever the nature of the document, consideration must be given to the language used in the light of ordinary rules of grammar and syntax, the context in which the provision appears; the apparent purpose to which it is directed and the material known to those responsible for its production. When more than one meaning is possible, each possibility must be weighted in light of all factors. The process is objective, not subjective. A sensible meaning is to be preferred to one that leads to insensible or unbusiness like results or undermine the apparent purpose of the document. The inevitable point of departure is the language of the provision itself, read in context and having regard to the purpose of the provision and the background to the preparation and production of the document.” It is for that reason that much more judicial interpretation is required than a mere parole rule.
42. I considered that the main cause of the dispute is the Collective Agreement, item 4.1. which states, “Temporary or contractual lecturers who have been employed on a continuous basis in the college establishment for period of 12 months or more and are currently in vacant funded substantive post will be made permanent.” It is on this basis that the applicant feels that he should have been made permanent as per this provision.
43. When read in context and having regard to its purpose, I considered the respondent’s evidence that Item 1, provides for the Purpose, and is read as follows: “The purpose of this agreement is to effect, within the approved post establishment of the college, the permanent appointment of serving temporary and contract lecturers who have been employed in the College establishment for a period of 12 months or more on continuous basis.”
44. I also considered the respondent’s evidence that as to the background to the preparation and production of the collective agreement, the collective agreement was reached at during the time when colleges were still autonomous, having their own approved post establishment which provided for appointment both temporary lecturers and permanent.
45. I considered Section 20 (1)(2) and (3) as follows: “The college is the employer of all lecturers and support staff. (2) Subject to this Act, the Basic Conditions of Employment Act, the Employment Equity Act, and any other applicable law, the council must establish posts for lecturers and support staff. (3) The council must appoint and remunerate staff from the funds allocated in accordance with norms and standards contemplated in section 23 and other income received by the college from other sources”.
46. In contrast, this means that colleges were regulated in terms of FETC Act. As per provision above, the college was receiving funds in accordance with norms and standards, they then established post establishment and appoint lecturers and staff.
47. I considered the respondent’s evidence that on those post establishment, the college would appoint both permanent and temporary staff. I therefore find that the post establishment that is referred to in the collective is the post establishment that was established by the college and that it provided for both temporary and permanent lecturer. Therefore, the colleges were in terms of the collective agreement supposed to identify lecturers who were employed on temporary or contractual basis for 12 months and more and appoint them permanently in that college’s post establishment.

As to whether the non-appointment of the applicant permanent was as a result of incorrect interpretation and application of a collective agreement

48. It is common cause that the applicant was appointed on the 1st of July 2021. I considered the respondent’s evidence that colleges were merged and were absorbed by the Department of Higher Education in 2015. I also considered that all lecturers who were permanently employed on the colleges’ post established were absorbed by the DHET and employed on PERSAL. I considered the evidence that the college post establishment was at that time collapsed; and that new post establishment was created by the DHET where college staff was placed. I also considered the respondent’s evidence that a new Act was promulgated.
49. Mr. Plaatjie referred to the Act and read its Section 20(1)(6) of the Continuing Education and Training Act as follows: (1) “The staff of the public colleges consists of persons appointed(a) the Minister in terms of the Public service Act in posts established on the organizational structure of the Department and identified as posts to the respective colleges and (b) the council in posts establishment in addition to posts contemplated in (a)”.
50. The applicant firstly denied having been employed under and alleged that he was appointed on funded substantive post. He however after cross-examination, finally conceded that he is on the college council post establishment. I considered the respondent’s evidence that there is no longer permanent staff in the college council’s post establishment. I further considered that it is impossible to appoint anyone on a post establishment that does not exist. For that reason, I find that the non-appointment of the applicant on permanent basis is not as result of wrong interpretation or wrong application of a collective agreement. AWARD
51. The Respondent did not commit any wrong interpretation or wrong application of a collective agreement.
52. Non-appointment of the applicant on permanent basis is not as per incorrect interpretation or wrong application of a collective agreement.

Ramadimala Jacky Mateta

Sector: Education