22 July 2025 – ELRC1037-24/25GP

Case Number: ELRC1037-24/25GP
Commissioner: PAUL PHUNDU
Date of Award: 21 July 2025

In the ARBITRATION between

NEHAWU obo Philile Sithathu & 14 Others
(Union/Applicant)

And

Department of Education – Gauteng
(Respondent)

Union/Applicant’s representative: Mr David Lephoto
Union/Applicant’s address:

Telephone:
Telefax:
E-mail:

Respondent’s representative: Mr Thokozani Nkambule
Respondent’s address:

Telephone:
Telefax:

DETAILS OF HEARING AND REPRESENTATION

[1] 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 24 (2), 24 (5) of the LRA. That is, interpretation and application of a collective agreement. The collective agreement being Resolution number 2 of 2013. The Resolution is about permanent appointment of serving temporary and contract lecturers who have been in the employ of further education and training for a period of 12 months or longer.

[2] The arbitration was conducted on 20 June 2025 at CJ TVET College of Education Boardroom, Park-Town, Johannesburg.

[3] The Applicants were represented by, Mr David Lephoto, Union Official from Nehawu. The Respondent was represented by, Mr. Thokozani Nkambule, Assistant Director- Labour Relations.

[4] The proceedings were conducted in English and were digitally recorded. I also kept handwritten notes.

[5] Both parties agreed and accepted bundle of documents into evidence, to which neither party recorded any objection.

ISSUE TO BE DECIDED

[6] I am called upon to determine whether or not the Respondent has correctly interpreted and applied Resolution number 2 of 2013. That is, conversion of temporary lecturers from temporary positions into permanent positions after serving a period of longer than 12 months in temporary employment as Lecturers.

[7] Whether this collective agreement applies to temporary lecturers or not.

BACKGROUND TO THE ISSUE

[8] The Applicants are in the employ of the Central Johannesburg TVET College as Lecturers.
[9] The Applicants joined the College on a fixed term contract of employment on different dates and these contracts have been renewed on more than one occasion. All the Applicants have been temporarily employed for a period exceeding 12 months.

[10] The Applicants declared a dispute concerning an interpretation and/or application of a collective agreement (Resolution 2/2013) .

[11] Conciliation failed and the certificate of non-resolution of the dispute was issued and pre-arbitration minutes were submitted to the Council. The matter proceeded to arbitration. In terms of relief, the Applicants wished to be appointed permanently in terms of the provisions of the collective agreement.

SURVEY OF EVIDENCE AND ARGUMENT

ARGUMENT FOR THE APPLICANTS

[12] The Applicants had one witness in support of their case, their evidence was briefly as follows:

[13] Ms. Philile Sithathu testified, under oath, that she is temporarily employed by the Respondent as a Lecturer. She joined the College on 9 March 2020.

[14] Ms. Sithathu stated that she has been employed together with her colleagues for more than 5 years on a temporary basis. According to her, the service they have provided to the College is unbroken. She further stated that clause 4.1 of the Resolution stipulates that “ Temporary or contract lecturers who have been employed on a continuous basis in the college establishment for a period of 12 months or more and are currently in a vacant funded substantive post will be made permanent”. According to Ms Sithathu, the Respondent has refused to implement this clause of the Resolution and as a result, incorrectly interpreted and applied Resolution 3 of 2013.

[15] Ms Sithathu concluded by stating that there is no clause in the Resolution that stipulates that the Resolution is only applied for a certain period, according to her the Resolution is indefinite.

[16] The Respondent is urged to comply with the provisions of the Resolution and implement it accordingly and appoint them permanently as lecturers.

[17] Under cross-examination the applicant confirmed that clause 4.1 simply means that after serving as lecturers for a period exceeding 12 months, they must be appointed permanently.

[18] The Applicants further confirmed that the Resolution does not have an end date.

ARGUMENT FOR THE RESPONDENT

[19] The Respondent had one witness in support of its case. The evidence was briefly as follows:

[20] Mr Thokozani Nkambule testified, under oath, that he is employed by the Respondent as Assistant Director-Labour Relations. He stated that the Collective Agreement was concluded at the time when all TVET Colleges were autonomous. The Colleges had their FET Bargaining Chamber. It was only in 2014 when all the Colleges were brought under the Department of Higher Education and Training.

[21] According to Mr Nkambule the word ‘continuous service’ does not mean the future. The Collective Agreement was only confined to the year 2013.

[22] Mr Nkambule indicated that there is ambiguity in the Collective Agreement.

[23] Mr Nkambule stated that the Respondent did nothing wrong by not placing the Applicants into permanent positions and no future application of the Collective Agreement was envisaged.

[24] Under cross examination Mr Nkambule confirmed that there are lecturers who are currently employed on fixed term contracts of employment. Mr Nkambule conceded that the there is no end date on the Collective Agreement.

ANALYSIS OF EVIDENCE AND ARGUMENT

[25] The collective agreement being Resolution number 2 of 2013. The Resolution is about permanent appointment of serving temporary and contract lecturers who have been in the employ of further education and training for a period of 12 months or longer.

[26] Clause 4.1 of the Resolution stipulates that “ Temporary or contract lecturers who have been employed on a continuous basis in the college establishment for a period of 12 months or more and are currently in a vacant funded substantive post will be made permanent”.

[27] It is common cause that a collective agreement binds the parties to the collective agreement.

[28] It is common cause that the Applicants are employed as Temporary Lecturers by the Respondent.

[29] I am satisfied and convinced by Ms Sithathu’s testimony that clause 4.1 of the Resolution stipulates that “ Temporary or contract lecturers who have been employed on a continuous basis in the college establishment for a period of 12 months or more and are currently in a vacant funded substantive post will be made permanent”. The reason I say so is because there is no evidence before me proving that this Resolution does not apply to the Applicants or the Resolution was cancelled and/or clause 4.1 was nullified.

[30] I am persuaded by the Applicant’s testimony that the Respondent had incorrectly applied and interpreted this Resolution when it refused to implement it. Further to the above, it was not disputed that the positions occupied by the Applicants are vacant funded substantive posts. There was also no indication that the Applicants did not meet the minimum requirements of the positions they occupied.

[31] I reject Mr Nkambule’s testimony that the Collective Agreement was only confined to the Year 2013. The reason I say so is because there is no provision or clause in the Collective Agreement that stipulates the end date of the Agreement. And there is nothing that says the Agreement will only be operational from 13 February 2013 to a specific date. None whatsoever, Mr Nkambule provided no documentary evidence to substantiate his argument. In my view, Mr Nkambule is importing and incorporating a clause which was not signed up to by the parties in the Collective Agreement.

[32] Mr Nkambule indicated that there is ambiguity in the Collective Agreement but failed to pin point the ambiguity.

[33] It is my finding that the Respondent had incorrectly interpreted and applied ELRC Resolution 2 of 2013.
.
AWARD

[34] The Respondent is ordered to comply with clause 4.1 of Resolution 2 of 2013 and place the applicants into a permanent position as a Lecturers.

[35] The Respondent is ordered to comply with this order on or before the 29 August 2025.

[36] See hereunder the list of the affected applicants.