In the matter between

SALIPSWU obo Ngqungwana S Applicant

and

Port Elizabeth TVET College Respondent

ARBITRATOR: AW Howden

HEARD: 18 January 2019

DATE OF AWARD: 20 February 2019

SUMMARY: Labour Relations Act 66 of 1995 – Section 24(2) [24(5)] – interpretation and application of collective agreement – ELRC Resolution 1 of 2013, with reference to Annexure F– whether the Port Elizabeth TVET College applies the provisions of the Collective Agreement correctly.

ARBITRATION AWARD

DETAILS OF PROCEEDINGS AND REPRESENTATION

1. This matter was Set Down for Arbitration on 18 January 2019 at the Port Elizabeth TVET College in Post Elizabeth – Eastern Cape.

2. The Applicant, Mr S Ngqungwana, was present and represented himself.

3. The Respondent, Port Elizabeth TVET College, was represented by Adv M Mali – Department of Higher Education and Training.

4. Both parties submitted bundles of documents. None of the documents were in dispute and it was agreed that the documents’ contents were what they purported to be.

5. The parties requested that Closing Arguments be done in writing. The parties agreed that Closing Arguments be submitted on 25 January 2019 by 4:00 pm.

ISSUES IN DISPUTE

6. I am required to determine whether the Respondent applies the provisions of ELRC Resolution 1 of 2013, with reference to Annexure F, correctly.

BACKGROUND TO THE DISPUTE

7. The Applicant is employed by the Department of Higher Education and Training (DHET) as a full time Post Level 1 Lecturer. The Applicant is also employed by the Port Elizabeth TVET College (College) as a Part-Time Lecturer.

8. The Applicant’s complaint is that the College does not adhere to the minimum hours for part-time lecturers. (The hours that the lecturer must complete in his/her full-time capacity before qualifying for part-time work).

9. The Respondent’s version is that Collective Agreement 1 of 2013 is not applicable to staff members who transferred in terms of the Further Education and Training Colleges Amendment Act No 3 of 2012, Section 12 of the Amended Act which refers to Section 19 of the principal Act namely the Further Education and Training Colleges Act 16 of 2006.

SURVEY OF EVIDENCE AND ARGUMENT

10. It is common cause between the parties:

10.1 That the Applicant is a full time Post Level 1 Lecturer employed by DHET at the Port Elizabeth TVET College.

10.2 That the Applicant is employed as a Part-Time Lecturer at the Port Elizabeth TVET College.

11. At the outset I must point out that this is a brief summary of the evidence which is relevant to the central issues and that I have taken all evidence submitted into account when making my decision.

The Applicant’s Submissions

12. The Applicant read the following into record:

Collective Agreement No 1 of 2013 Annexure F:

3. SCHEDULED CONTACT HOURS

3.1 The time allocated for teaching in respect of different post levels will differ.
3.2 The allocation of scheduled contact hours should be done in such a manner that it:
a) maximizes the individual abilities of all lecturers and
b) optimizes teaching/training and learning at the institutional level.
3.3 Where classes are so arranged that a member of the lecturing staff does not meet the required hours per week of actual contact time, determined in terms of paragraph 4, he/she may, in respect of the shortfall, be required to lecture to any class for part-time students attached to such college without receiving additional remuneration, therefore. This must be done through consultation and a fair, transparent and equitable manner.
3.4 In general terms, the following serves as guidelines in determining the scheduled contact hours: –
(a) Heads of colleges
The task of the Head of the institution is first and foremost that of manager and leader of an institution for post-school education. His/her aims should be the advancement and development of the total spectrum of interests of the College, as well as active support of the policy prescribed from time to time by the provincial education department.

(b) Management Staff (Post Level 3 and higher)
Management staff is expected to give instructions as part of their normal duties.

Apart from the actual contact hours, management and administrative duties, they are mainly responsible for tasks delegated to them by the Head of the institution, as well as for the continued growth of the college.

(c) Lecturers and Senior Lecturers (PL 1 and 2)
Their primary task as lecturers is effective teaching and not mere training. This included being well-informed about their field of study by reading professional, scientific and technical journals and by paying visits to commercial, industrial or other relevant bodies.

NOTE 1: Actual contact hours on post level 3 and higher should be between 5 hours and 15 hours per week; except for heads of institutions at post level 3. Subject to efficient curriculum delivery and an equitable workload.

Actual contact hours on post-level 2 should be between 18 hours and 22.5 hours per week.

Actual contact hours for post level 1 lecturers should be between 22.5 hours and 25 hours per week.

NOTE 2: Lecturers not lecturing (no actual contact hours) shall observe a work week of 40 hours.

NOTE 3: The above actual contact hours excludes contact hours in terms of a part-time appointment of full-time lecturers.

4. MINIMUM NUMBER OF TEACHING HOURS PER WEEK AND THE APPOINTMENT OF FULL-TIME TEACHING STAFF, IN A PART-TIME CAPACITY, AT COLLEGES OFFERING APPROVED PART-TIME CLASSES

4.1 The minimum number of teaching hours per week before staff of a college may be appointed part-time, and the maximum number of additional hours per week for which part-time appointments can be made are as follows:

Level of post Post Designation Minimum number of teaching hours per week Maximum number of additional hours per week for which part-time appointment can be made
1 Lecturer 22.5 hours 12 hours
2 Senior Lecturer 22.5 hours 12 hours
3 Head of Division/
Deputy Heads of institutions 15 hours 6 hours
4

3/4/5/6 Deputy Heads of institutions

Heads of Institutions *** 5 hours (only if no full-time staff are available)

6 hours (only in very exceptional cases and if no full-time staff are available.

# Equal ranks as well.
*** Minimum number of hours is not laid down with the proviso that the staff members involved do not qualify for part-time appointment if formal day classes are not offered.

4.2 Staff in teaching posts must comply with the above minimum number of teaching hours in order to qualify for appointment of bona fide part-time teaching. Heads of institutions, with delegated authority can, for the purposes of the appointment of full-time staff in part-time teachings posts, increase the minimum number of hours required before staff may be appointed to part-time teaching posts, within the prescribed hours as mentioned in note (1) of this resolution to suit local requirements.

4.3 Full-time staff qualifies for appointment for part-time teaching for approved part-time classes. Heads of institutions must ensure that part-time classes are not created to provide an opportunity for additional income for full-time staff.

13. The Applicant stated that the College does not comply with paragraphs 3.4; 4.1; 4.2 and 4.3 above and that the Collective Agreement disqualifies people who do not work according to these hours, specifically when looking at paragraph 4.2.

14. The Applicant further confirmed that he works 25 hours per week as required by the Collective Agreement before lecturing part-time classes. (Bundle B page 107).

The Respondent’s Submissions

15. The Respondent’s Representative read the following into record:

Further Education and Training Colleges Amendment Act 2012:

Substitution of section 20 of Act 16 of 2006

The following section is hereby substituted for section 20 of the principal Act:

“Appointment of staff”

20 (1) The staff of public colleges consists of persons appointed by –
(a) the Minister in terms of the Public Service Act in posts established on the organisational structure of the Department and identified as posts to the respective colleges; and
(b) the council in posts established in addition to the posts contemplated in paragraph (a).

16. The Respondent’s Representative stated that College employees are appointed as per the Public Servants Act and Annexure F does not apply to DHET appointments.

17. The Respondent’s Representative pointed out that Note 1 paragraph (2) (Bundle B page 77) uses the word “should” and not must, as this would depend on the operational requirements of the College and Post Level 2 Lecturers are not required to teach 22.5 hours per week before lecturing part-time classes.

18. The Respondent’s Representative further pointed out that Note 1 paragraph (3) (Bundle B page 77) does not state that a Post Level 1 Lecturer must only teach 22.5 hours per week before lecturing part-time classes.

ANALYSIS OF THE EVIDENCE AND ARGUMENT

19. It is trite that the College employees were transferred over from the then employer, namely the College Council, to the current employer, namely DHET in terms of Section 197 of the LRA.

20. The Respondent on the day, although not mentioned again in the closing arguments in any way, made submissions that the Collective Agreement was not applicable to DHET employees.

21. Section 197 of the LRA states:

(2) If a transfer of a business takes place, unless otherwise agreed in terms of subsection (6)-
(a) the new employer is automatically substituted in the place of the old employer in respect of all contracts of employment in existence immediately before the date of transfer;
(b) all the rights and obligations between the old employer and an employee at the time of the transfer continue in force as if they had been rights and obligations between the new employer and the employee;
(c) anything done before the transfer by or in relation to the old employer, including the dismissal of an employee or the commission of an unfair labour practice or act of unfair discrimination, is considered to have been done by or in relation to the new employer; and
(d) the transfer does not interrupt an employee’s continuity of employment, and an employee’s contract of employment continues with the new employer as if with the old employer.
(3) (a) The new employer complies with subsection (2) if that employer employs transferred employees on terms and conditions that are on the whole not less favourable to the employees than those on which they were employed by the old employer.
(b) Paragraph (a) does not apply to employees if any of their conditions of employment are
determined by a collective agreement.
(5) (a) For the purposes of this subsection, the collective agreements and arbitration awards referred to in paragraph (b) are agreements and awards that bound the old employer in respect of the employees to be transferred, immediately before the date of transfer.
(b) Unless otherwise agreed in terms of subsection (6), the new employer is bound by-
(i) any arbitration award made in terms of this Act, the common law or any other law;
(ii) any collective agreement binding in terms of section 23; and

22. It is noted that the Collective Agreement has in no way been amended or revoked and when taking Section 197 of the LRA into consideration it is my finding that the provisions of the Collective Agreement apply to the College. The Respondent’s submissions that the Collective Agreement does not apply to DHET employees is unfounded.

23. The Respondent’s Representative stated that in Note 1 (Bundle B page 77) the word “should” is used instead of the word “must” and therefore the requirements of the College are determined by operational requirements.

24. In the Oxford Living Dictionary the word “Should” is defined as: Used to indicate obligation, duty or correctness. Looking at the purpose of the Collective Agreement and what it attempts to achieve I believe the author of the document, in this context, has given the word a more peremptory meaning and places an obligation on all parties involved to comply.

25. It is therefore my finding that the Respondent is obligated to comply with the provisions of Note 1, Note 2 and Note 3 as stated in paragraph 3.4 of the Collective Agreement. (Bundle B page 77) with regards to the actual contact hours.

26. It needs to be highlighted that in paragraph 4.2 of the Collective Agreement it states “Staff in teaching posts must*…. ”. The word “must” if translated literally, which is what I have done in this instance, places a clear obligation on the Respondent to comply with the minimum number of teaching hours (contact hours) per week that a Lecturer must* teach in a full-time capacity before* being appointed as a part-time lecturer. (Emphasis added*).

27. It is therefore my finding that the Respondent is obligated to comply with the provisions of paragraph 4.2 of the Collective Agreement (Bundle B page 78) with regards to the minimum number of teaching hours per week.

28. It further needs to be highlighted that the minimum number of teaching hours as prescribed by paragraph 4 of the Collective Agreement has been predetermined in Note 1 in paragraph 3.4, thus further supporting my finding in paragraph 25 above.

29. It is common cause that the Respondent can increase the number of hours (contact time) from the minimum number of teaching hours; for example, 22.5 hours per week (Paragraph 4.3 Bundle B page 78) to the maximum of 25 hours per week (Note 1 paragraph 3 Bundle page 77 B) for a Post Level 1 Lecturer.

30. It is common cause that the Applicant teaches 25 hours per week (contact time) in a full-time capacity prior to being appointed in a part-time capacity.

31. It is therefore my finding that as far as the Applicant is concerned the Respondent applies the provisions of the Collective Agreement correctly.

32. The Applicant has made much of the Respondent’s non-compliance with regards to the Collective Agreement in his submissions as well as in his closing arguments, which allegations seems to apply more specifically to Post Level 2 and 3 Lecturers. This however is not the dispute before the Council.

33. I therefore make the following award.

AWARD

34. The Respondent, Port Elizabeth TVET College, has applied the provisions of ELRC Collective Agreement 1 of 2013 correctly as far as the Applicant, Mr S Ngqungwana, is concerned.

Panellist: AW Howden
ELRC