In the ARBITRATION between. (Union/Applicant) and. (Respondent)

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Clement Stevens
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Arbitration Award Case Number: Commissioner: Date of Award: PSHS295-14/15 Dialwa Mathala 28 October-2014 In the ARBITRATION between NPSWU obo E Rafube (Union/Applicant) and Department of Heath

1 Arbitration Award Case Number: Commissioner: Date of Award: PSHS295-14/15 Dialwa Mathala 28 October-2014 In the ARBITRATION between NPSWU obo E Rafube (Union/Applicant) and Department of Heath Gauteng (Respondent) Union/Employee s representative: Mr. Kekana Union/Applicant s address: No 3 Lessing Close Rynfield Benoni 1500 Telephone: Telefax: Employer s representative: Ms Jennet Hobyana Respondent s address: PO Box 222 Springs 1560 Telephone: , Telefax: , thami.mvumbi@implats.co.za PSHS295-14/15 Page 1

2 DETAILS OF HEARING AND REPRESENTATION [1]This dispute was referred to the Public Health and Social Development Sectoral Bargaining Council (hereinafter referred to as the Council), as Collective Agreement- interpretation or application, section 24 (2), [24 (5)] of the Labour Relations Act of 1995(LRA) as amended, and was set down for Arbitration on the 26 th September 2014, after the parties failed to reach an agreement at conciliation. The hearing was held at Bank of Lisbon Building, 14 th Floor, Cnr Sauer and Market Street, in Johannesburg. The Applicant was represented by Mr. Kekana from NPSWU while the Respondent was represented by Ms Hobyana. ISSUE TO BE DECIDED [2] I am called to determine whether or not the Occupational Specific Dispensation (hereinafter referred to as the OSD) was implemented as per the wishes of the parties as envisaged in the Collective Agreement, Resolution 3 of 2009 and, and to pronounce an appropriate relief thereof. BACKGROUND TO THE ISSUE [3] This matter concerns the translation of the Applicant based on the OSD, the process which is informed by Resolution 3 of 2009 agreed upon between the Respondent and the Applicant. The Applicant s case is that the Respondent in implementing Resolution 3 of 2009 did not consider the correct implementation date, as the implementation was only effected from August 2013 and not August Feeling aggrieved, the Applicant referred the matter to Council for the interpretation of the Resolution in question. Parties agreed to make written submissions wherein they argued their cases, and same was received by Council. It is therefore against this background that I am not going to repeat or rewrite what the parties had already submitted but to deal only with what the case is, for respective parties. SURVEY OF EVIDENCE AND ARGUMENT [4] The case for the Applicant is briefly that the Respondent did not comply with the implementation date as stated in Resolution 3 of 2009 which states that the implementation date would be the 1 st April Instead the Respondent only translated him from August 2013, a year later. The Applicant relies on the clear wording of the Resolution as far as the implementation date, the purpose of the Resolution and the qualification thereof of the candidates, all which are apparent upon reading the Resolution. According to the Applicant, the Respondent should have translated him retrospectively from August 2012, the month on which he attained 15 years working for the Respondent. The Applicant further alleges that his job title was not changed from that of Administrative Clerk to Administrative Officer, following his translation in He also argues that the letter of translation did not reflect the benefits attached to the new position and level. [5] On the other hand the Respondent, while not disputing what is stated as the date of implementation in Resolution 3 of 2009, and the fact that the Applicant completed 15 years, and thus qualified, the dispute lied in that the Applicant was not entitled to be translated the moment he attained 15 years of service. The Respondent submitted that the employer had a duty in terms of the said Resolution and the applicable Circular to wait for the financial year cycle before any other translation may be implemented. The Respondent further submitted that the DPSA is the custodian of all departments and has issued a Circular no:2 of 2009, to give effect on the implementation of Resolution 3 of 2009, which states as follows as per clause ; The date of grade progression is linked to the performance management cycle, which normally runs from 1 April to 31 March of the next year. The Respondent s interpretation of the above circular is submitted to imply that the grade progression of an employee, who meets the qualifying PSHS295-14/15 Page 2

3 prescribed period of service for grade progression during the course of a performance cycle, will only be effected on 1 April of the year following the particular performance cycle Therefore, grade progression will only be effected on with effect from 1 April of a year. On the unchanged rank as alleged by the Applicant, the Respondent submitted that the Resolution does not talk about changing of ranks but it seeks to address the question on salary progression and therefore on this basis the Applicant s rank will not change. [6] From the submission made, it appears as common cause that Resolution 3 of 2009 states the implementation date of the OSD as the 1 st April 2010; that the Applicant attained 15 years in August 2012 and was translated effective from August The Applicants contends that no one has the powers to deviate from a Resolution as it is a Collective Agreement, while the Respondent states that the employer has the power in terms of the Resolution and Circular 2 of 2009 to determine the implementation date. Whether or not the employer or the DPSA has powers or discretion to override a Resolution, it appears as a point of contention. It was through Circular 2 of 2009 that the implementation date of August 2013 came about. It is not clear from the submissions if the same was communicated to the affected parties at that stage but the Applicant disputes any knowledge of such communication. It appears from the parties submissions as well that there is no dispute on the wording of Resolution 3 of 2009 as far as the date of implementation, since such date is clearly and unambiguously articulated as the 1 st April The functions of the Minister of the Department Public Service Administration are of common cause, so far as stipulated in the Public Service Act. ANALYSIS OF EVIDENCE AND ARGUMENT [7]This is a collective agreement dispute and by definition in terms of the LRA, section 213, collective agreement is a written agreement concerning terms and conditions of employment or any other matter of mutual interest concluded by one or more registered trade unions, on the one hand and, on the other hand, one or more employers, one or registered employers organization, or one or more employers and one or more registered employers organization. [8] Section 23 of the LRA provides that the legal effect of a collective agreement is that it binds all the parties to the collective agreement. Section 3 (5) of the Public Service Act 103 of 1994 (hereinafter referred to as the PSA) provides that subject to the LRA and any collective agreement, the Minister may make determinations regarding any conditions of service of employees generally or categories of employees, including determinations regarding a salary scale for all employees or salary scales for particular categories of employees and allowances for particular categories of employees. section 3 (5) (a) of the PSA provides that subject to the provisions of the PSA, an executing authority shall have those powers and duties regarding the internal organization of the office or department concerned, including the organizational structure and the transfer of functions within that office or department. [9] Section 5 (4) provides that every act of the Minister, any executing authority or any other person, irrespective of whether such act consists of the making of any regulation or any determination or the taking of any decision, which relates to any matter of any collective agreement contemplated in item 15 (i) schedule 7 of the LRA, or of any collective agreement concluded by a bargaining council established in terms of the said Act for the public service as a whole or for a particular sector in the public service, shall be performed ONLY in accordance with any such collective agreement. Sub-section 5 provides that; notwithstanding the provisions of sub-section 4, any executing authority or other person may act in respect of a particular officer or employee in accordance with the provisions of the Act or any other law; provided that where any such act constitutes a deviation from a collective agreement referred to in subsection 4, it shall not derogate from or annul such collective agreement or the collective bargaining PSHS295-14/15 Page 3

4 relationship, or reduce the remuneration or other service benefits of the particular officer or employee, or deprive that officer or employee of his/her remuneration or other service benefit, except within section 34. [10] It appears from the above pieces of legislation that while the Minister has powers, he/she can only discharge such powers subject to the above provisions of the Act. The Respondent relied on the circular made by the DG to justify the change of the implementation date of the OSD regarding the Applicant. From the above provisions, it is clear that any such circular should not fall foul of, inter alia, the collective agreement. It must be emphasized that the implementation date of any agreement is fundamental and material and therefore cannot be ambiguous and left to the interpretation by any party outside the agreement. This is simply because such date gives rise to rights and obligation to the parties affected, unless so specified by the agreement. Only parties to the agreement can, by agreement make amendments to their agreement. If it was intended by the parties for the Minister to have a final word on the implementation date, such clause should have reflected in the agreement. A determination made through Circular 2 of 2009 by the DG deviated from the original Resolution atleast as far as the implementation date is concern, and therefore falling foul of the provisions set out in subsection 5 above. [11] Item of Resolution 3 of 2009 provides that the provision of the agreement shall take effect on the date 1 st April The same clause makes it clear that the implementation thereof will not be subject to the availability of posts. By implication, there was no condition envisaged by the parties to this agreement, hence this clause. The availability of a post will imply a funded post and therefore a subsequent argument by the Respondent that the Applicant could not be translated on the basis that such translation had to fall within a particular performance cycle is baseless and as a result dismissed. [12] A Circular by the DG is a discretion unilaterally implemented by the employer to the exclusion of other parties to the collective agreement. Nowhere does the Resolution provide that the implementation date will be determined by the Minister or the DPSA. It appears therefore that such was never the desire of the parties to the agreement hence the omission thereof. Item 6 of the Resolution provides that in the event of any conflict between the provisions of this Agreement and any other Agreement of the Council, the provisions of this Agreement shall take precedence. It further provides that no amendment to this Agreement shall be of force unless reduced to writing and agreed upon at the Council as a Resolution of the Council. From the above provisions it appears that the parties were wild awake to their intentions to the extent that in anticipating any unforeseeable unintended occurrence, made a provision that Resolution 3 of 2009 will take precedence. A Circular by the DG cannot supersede Resolution 3 of 2009 signed by the Respondent and NPSWU. Whether or not the Applicant s rank had to change, the Resolution is silent and therefore such averment is dismissed because it is baseless. AWARD [13]Having considered all relevant, reliable and admissible arguments submitted, it is my finding that the Applicant had proven on balance of probability that the Respondent incorrectly applied and/or interpreted Resolution 3 of 2009 by not translating him with effect from August [14] It is therefore my finding that the effective date of implementation of the OSD in relation to the Applicant is the 1 st April 2010 and that as he attained 15 years only in August 2012, he should have been translated in the same year, 2012 and not August [15] The Respondent is ordered to implement the OSD with effect from August PSHS295-14/15 Page 4

5 [16] The Respondent is further ordered to re-adjust the Applicant s salary accordingly and then pay the difference in salary, between the August 2012 and August 2013 to the Applicant. [17] The Respondent is ordered to comply with this award on or before 14 November Signature: Panelist/s: Dialwa Mathala PSHS295-14/15 Page 5

Panellist/s: E. Tlhotlhalemaje Case No.: PSCB77-09/10 Date of Ruling: 20 APRIL In the MATTER between: JR MOKOENA & OTHERS (Union / Applicants)

RULING Panellist/s: E. Tlhotlhalemaje Case No.: PSCB77-09/10 Date of Ruling: 20 APRIL 2010 In the MATTER between: JR MOKOENA & OTHERS (Union / Applicants) And THE SOUTH AFRICAN POLICE SERVICES (1 st Respondent)