IN THE EDUCATION LABOUR RELATIONS COUNCIL HELD IN CAPE TOWN

Case No: ELRC993-25/26WC

In the matter between

Vilakahle Siyabulela Applicant

And

Department of Higher Education & Training Respondent

Arbitrator : A.Singh-Bhoopchand
Heard : 19 January 2026
Written Submissions : 30 January 2026
Date of Award : 17 February 2026

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ARBITRATION AWARD
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DETAILS OF HEARING AND REPRESENTATION

1. The arbitration hearing took place virtually on 19 January 2026 . Mr Bongi Nkhosi, a representative of the trade union NEHAWU represented the Applicant. Ms Bulewa Mancam , a labour relations official, represented the Respondent.
2. Both parties submitted comprehensive bundles of documents .
3. Proceedings were digitally recorded.

ISSUE IN DISPUTE

4. I must decide whether the Applicant is entitled to the provision of benefits relating to travel and subsistence in relation to his acting position.

BACKGROUND

5. The Applicant was employed as an Education Specialist with effect from 1 February 2025 at the Boland TVET College , Head Office in Stellenbosch. He was appointed to act in the position of Campus Manager at the Caledon Campus with effect from 18 August 2025. This position required relocation from his normal place of work (Stellenbosch) to Caledon. The return trip entails a travelling distance of 196 kilometers. He is duly being paid an acting allowance. This dispute concerns a claim for travel and subsistence allowance in relation to his acting position. The Applicant claims that he is entitled to be paid a travel and subsistence allowance under these circumstances while the Respondent disputes this .
6. Given that there is no dispute in relation to the facts but only in relation to whether he is entitled, based on the relevant provisions, to payment of the allowance, the parties presented argument before me. In addition, they also agreed to present written submissions, the last of which was received on 30 January 2026.

Survey of Submissions
Applicants’ Submissions

7. It is submitted that where acting is to be performed at an institution or office that is geographically removed from the person’s current place of work, an applicable subsistence and travel allowance shall also be paid to him .
8. Point 6(a) of the appointment letter states that the current terms and conditions of employment will not change. Clause 10 of the contract of employment states that should you be required to perform duties away from your headquarters , you may claim a subsistence and travel allowance in accordance with the laid down rates and provisions of the collective agreement or be supplied with transport and accommodation which is paid for by the employer.
9. It is submitted that the above provisions are not ambiguous . The Applicant is entitled to subsistence and travel allowance in line with the provisions. The Respondent’s reliance on the internal acting policy of DHET and Boland TVET College to deny the payment is misplaced in that it cannot supersede the Collective Agreement and Government Gazette.
10. Reference was also made to various case law which I shall refer to in my analysis where necessary.

Respondent’s Submissions

11. The Applicant primarily relies on ELRC Resolution 8 of 2001 as the basis for the claimed entitlement. This reliance is misplaced. The legislative framework referenced in this Collective Agreement has since changed and has been replaced by the Continuing Education and Training Act 16 of 2006 (CET Act), which now serves as the overarching legislation governing colleges. In the absence of applicable Collective Agreements regulating acting allowances in the current dispensation, colleges have consistently relied on the DHET Acting Policy , the DHET Subsistence and Travel (S&T) Policy , and aligned institutional policies. These policies have been applied fairly and consistently.
12. The college has consistently applied clause 4,7 of both the institutional Acting Appointment Policy and the DHET Acting Appointment Policy which provides :
    “Where acting is to be performed at an office that is geographically removed from the employee’s current place of work , an applicable subsistence , travelling allowance and accommodation may be paid to him/her according to the relevant DHETs Travelling and Subsistence Policy .”

The wording of the clause is clearly permissive , not mandatory. It confers a discretion on the employer rather than creating an automatic entitlement.

13. Due to severe and sustained financial constraints experienced by the college over several financial years , it has not been feasible to exercise this discretion in favour of payment . The policy has been applied consistently, and the Applicant has not been treated differently to other employees in similar circumstances.

ANALYSIS

14. The dispute was referred in terms of section 186(2)(a) of the Labour Relations Act, no 66 of 1995 (as amended) (LRA) and in this instance relates to unfair conduct relating to the provision of benefits. The term ‘benefits ’is not defined in the LRA though courts were strict for a long time that benefits had to be something written in your contract.
15. The landmark case of Appollo Tyres South Africa (Pty) Ltd v CCMA has broadened that definition. Today , a “benefit “, generally includes inter alia discretionary advantages. This means that even if a benefit is not in your contract , if the employer has a policy or practice of providing it , it counts as a benefit.
16. The landmark principle established by the courts is that any discretion exercised by an employer is subject to the requirements of fairness and rationality. The employer does not have a ‘blank cheque’ in the exercise of discretion. . The exercise of the discretion must not be capricious, arbitrary or mala fides .
17. The question then is whether the relevant provisions in this case are mandatory or discretionary. In the South African Technical and Vocational Education and Training (TVET) sector , the relationship between collective agreements and internal college policies is governed by the CET Act and various Bargaining Council Resolutions.
18. In the case of a DHET appointee as in this case, PSCBC Collective Agreements generally take precedence over internal college policies regarding benefits. Collective Agreements reached at the Public Service Co-Ordinating Bargaining Council (PSCBC) or sector specific councils like the ELRC for lecturers are legally binding. If the internal college policy conflicts with a Collective Agreement , the Collective Agreement prevails. Under the CET Act, while College Councils can create their own internal policies, they cannot offer conditions of service or benefits that are inferior to those determined by the PSCBC for the public service.
19. Internal policies typically fill the gaps where collective agreements are silent or allow for local discretion. In this case the PSCBC Collective agreement provision is mandatory. For travel and subsistence allowances in TVET Colleges , the foundational document is PSCBC Resolution 3 of 1999. Under the Labour Relations Act (LRA) and the CET Act , Collective Agreements reached at a bargaining council bind the employer and the employees. A TVET College cannot unilaterally decide to ignore a PSCBC provision. Clause 3.1 in Part X11 provides:

The employer shall meet the reasonable actual costs an employee incurs for travel and subsistence on an official journey.

Travelling from your permanent headquarters to a different site to perform acting duties is an “official journey”

20. More specifically, Government Gazette Volume 452, No. 24948 which the Applicant refers to contains the Personnel Administration Measures (PAM) which are the terms and conditions of employment for educators in South Africa. Clause 1.3 deals with the rules for acting. The specific sub-clause reads as follows:

Where the acting is to be performed at an institution or office that is geographically removed from the person’s current place of work, an applicable subsistence and travel allowance shall also be paid to him/her.

The phrase “shall also be paid” removes any discretionary” power from the College. It is entitlement, not a request.

21. The PAM explicitly applies to TVET Colleges . Even though the sector has moved from the Department of Basic Education to Higher Education (DHET), the PAM remains the foundational document for an employee’s conditions of service . There is no specific DHET Collective Agreement. The DHET or specific colleges internal policies cannot trump the provisions of the applicable Collective Agreement.
22. In the South African public service and education legal framework, the three main documents discussed work together like a pyramid. They do not contradict each other, instead , they build upon one another to form an employee’s total conditions of service.
23. In summary, PSCBC Resolution 3 of 1999 sets the rule for all public servants that the employer must pay for travel on official business. PSCBC Resolution 8 of 2001 is the broad framework which reinforces the principle that departmental policies must align with national standards and establishes the principles of acting allowances. The PAM is the specific application which takes the broad rules from the PSCBC and applies them specifically to educators . It adds the specific detail that acting at a “geographically removed” site triggers the travel allowance. The CET Act is the “parent” legislation for the entire TVET sector . It acts as the legal bridge that forces the college to follow the PSCBC and PAM. The CET Act governs the appointment of staff . Following the function shift (where TVET staff moved to DHET), the Act was amended to ensure that college employees are treated as public servants. Section 15(4) of the CET Act states that the Minister may determine the conditions of service for staff, but these cannot be less favourable than those of other state employees in similar positions.
24. The Respondent’s election to apply its own internal policy which is discretionary in terms of travel and subsistence allowances for acting positions that are removed from the normal workplace amounts to less favourable conditions of service. It is mandatory that the Applicant be reimbursed for travel and subsistence following his appointment to act in a location that is geographically removed from his normal place of work.
25. It is not disputed that the Applicant travels 196 kilometers (return trip included) per day. It is further not disputed that in circumstances where a travel and subsistence allowance is payable that the SARS guide for employers in respect of allowances is applicable.

I make the following award:

AWARD

1. The Applicant , Siyabulela Vikilahle , is entitled to the provision of a travel and subsistence allowance for the duration of his acting position at the Boland TVET College which commenced on 18 August 2025.
2. The Respondent’s failure to reimburse the Applicant for travel and subsistence allowance is unfair .
3. The Applicant must submit his claim for outstanding travel and subsistence allowance from the date of commencement of the acting position in a format prescribed by the Respondent within 5 days of service of this award.
4. The Respondent is ordered to pay all outstanding travel and subsistence allowances within 14 days of submission of the claim and to continue to pay all such claims for the entire duration of the acting position.

A.Singh-Bhoopchand: Senior ELRC Panelist
Commissioner