AWARD. FOR ATT: J Greeff FOR ATT: S Maimela / M Ntshikila. 24(2), [24(5)] - Collective agreement - interpretation or application (Res 3 of 2009)

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1 AWARD YOUR REFERENCE NUMBER FOR THIS CASE: Please quote this reference number when communicating. It will assist us in providing information more quickly and efficiently. PSCB152-12/13 FOR ATT: J Greeff FOR ATT: S Maimela / M Ntshikila Referring party details PSA obo Van Heerden, JF P O BOX 7673 Bloemfontein 9300 Tel: Fax: /19 Responding party details Department of Justice & Constitutional Development - National Private Bag X20578 Bloemfontein 9300 Tel: Fax: / / / February 2017 Dear Sir/Madam, Matter Between: and: Issue: PSA obo Van Heerden, JF Department of Justice & Constitutional Development - National 24(2), [24(5)] - Collective agreement - interpretation or application (Res 3 of 2009) Please find attached award for this matter. Yours sincerely, Tracey Mokoena Case Management Officer Page 1 of 9

2 Case Number: PSCB152-12/13 ARBITRATION AWARD Case Number: PSBC152-12_13 Senior Commission / Panellist: Martinus van Aarde Date of Award: 10 November 2012 In the MATTER between PSA obo JF van Heerden & 2 Others (Applicant) and Department of Justice & Constitutional Development (Respondent) Applicant s representative: Applicant s address: Mr. A. J. Greeff C/o: PSA PO Box 7673 BLOEMFONTEIN, 9300 Telephone: (051) Telefax: (051) Respondent s representative: Respondent s address: Ms. S. Maimela Department of Justice & Constitutional Development (DJCD) PRETORIA Telephone: (012) Telefax: Page 2 of 9

3 1. Details of hearing / representation The case was set down for an arbitration hearing on 31 October 2012 (14h30) at Bloemfontein, PSA Offices. Mr A. J. Greeff: Official PSA represented the Applicants. Ms. S Maimela: Deputy Director Labour Relations represented the Respondent (DJCD). 2. Issue(s) to be decided 2.1 This is an application in terms of the Labour Relations Act 66/1995, section 24(2)(5) re the interpretation/application of a collective agreement, more specifically Resolution 3/2009: Agreement on a revised salary structure for employees on salary levels 1-12 not covered by an occupation specific dispensation to be read with Circular 2/2009 dated 11 September 2012 and Circular 29/2011 dated 7 November In essence the question boils down as to whether the said Applicants are entitled to upgrading from salary level 6 to salary level Background to dispute 3.1 The Applicants in this matter are JF van Heerden; EG Venter; and D van Heerden 3.2 The Applicants lodged a formal dispute (LRA 7.11) on 31 May 2012 on basis set out above. The case was set down for a conciliation hearing on 4 July 2012 before Commissioner Mthembu. The dispute was declared unresolved and a certificate of non-resolution was accordingly issued in terms of section 135(5)/LRA 95. Page 3 of 9

4 3.3 The case was set down for an arbitration hearing on 31 October 2012 before myself. According to the notice of set down the referring party is cited as PSA obo JF van Heerden (sic) must be: PSA obo JF van Heerden & 2 others; the dispute relates to Resolution 14/2002 (grievance procedure) whereas the real dispute relates to Resolution 3/ Despite the above, I have heard brief arguments from both parties and agreed that the parties file written submissions in an endeavour to finalise the matter (Annexure A & B respectively) It is common cause that the Respondent initially arranged to call four (4) witnesses in support of their case; the Applicants (Mr. Greeff) concede that the Respondent s initial actions to upgrade their salary levels were not mala fide but by common mistake; save for the Applicants in question, there are also other employees at WC/KZN who are also in similar positions; the parties requested to argue their respective cases on paper, hence no need to call any witnesses It is furthermore common cause that the Applicants posts are graded on salary level 4 (Admin Clerk); they all have 15 years of service/satisfactory service records; the Respondent initially implemented the upgrades to salary level 7 but later discovered that the upgrades were done incorrectly (bona fide mistake). The Respondent did not yet (despite its discretion to do so) start to deduct the said over-payment from the employees salaries pending the outcome of this award. Page 4 of 9

5 4. Survey of evidence / argument 4.1 Applicants case (Annexure A) The Applicants arguments briefly as follows the Applicants were appointed on salary level 6 on 1 April 2010 (they were 15 years on post level 4); Applicants relied on clause /Collective Agreement 3/2009 arguing that they met the requirements/were entitled to be upgraded/progressed to salary level 7 (with effect from 1 April 2010). 4.2 Respondent s arguments (Annexure B) The Respondent s arguments briefly as follows the Applicants occupied positions of Admin Clerk(s). The post was upgraded on level 4; in terms of the old rank/leg promotion guidelines (PAS), the Applicants progressed to salary level 6; in terms of Resolution 3/2009 (clause 3.6.2) the Applicants were not entitled to progress to salary level 7 Resolution 3/2009 is post-bound and not salary level bound; Respondent also relied on Circular 2/2009 & 29/2011/previous case law. 5. Analysis of Evidence / Argument I will address the material issues separately. 5.1 The objective of Resolution 1/2009 is to (1.1) give effect to clause 5 of Resolution 1/2007 by introducing a revised salary structure for all occupational categories granted on salary levels 1-12 not covered by Occupational Specific Dispensation (OSD). Page 5 of 9

6 (1.2) introduce a career path model and grade progression for identified salary levels. 5.2 In terms of the old PAS / rank- and leg promotion guidelines, barely any recognition was given to employees with long service (salary position freezed on post-/salary scale). With the introduction of Resolution 3/2009 a grade progression model was introduced for employees on certain salary levels. The purpose of this grade progression model is thus to give recognition to employees on these salary levels and who have a certain number of years experience/maintained a satisfactory performance level. The qualifying employee thus progressed to the next higher salary level, without this effecting the level of the post in which (s)he serves the employee s job remains the same. In essence, the employee s post is not per se upgraded to a higher level, but the employee is advanced/progressed to a higher salary level doing the same job in recognition of years of service/good performance. 5.3 Resolution 3/2009 (clause 3.6.2) reads as follows (3.6.2) Salary levels 4-5; salary levels 5-6; salary levels 6-7 and salary levels Subject to the Public Service Regulations and based on the outcome of the Job Evaluation exercise, posts are advertised and filed at the minimum notch of the first appropriate salary level With effect from 1 April 2010 (salary adjusted with effect from 01 July annually), and employee on salary level 4, 5, 6 or 7, who has completed 15 years of continuous service on a salary level, irrespective of the notch, and has obtained at least satisfactory rating in his/her performance assessments (the average assessment over the last 2 year period will determine the performance rating), shall grade (salary level) progress to salary level 5, 6, 7, or 8 respectively. This is not subject to the availability of posts. (emphasis added) Grade progression will be capped for employees on salary level 3, 8 and 10. Therefore, employees cannot grade progress from salary levels 3 to 4, from salary level 8 to 9 and from salary level 10 to Employees can only grade progress from salary levels 4 to 5, or from salary level 5 to 6, or from salary level 6 to 7 or from salary level 7 to When an employee is appointed on a post graded on salary level 4, he/she shall only progress to salary level 5. (emphasis added) Page 6 of 9

7 When an employee is appointed on a post graded on salary level 5, he/she shall only progress to salary level When an employee is appointed on a post graded on salary level 6, he/she shall only progress to salary level When an employee is appointed on a post graded on salary level 7, he/she shall only progress to salary level No employee who was appointed on salary level 4, 5 and 6 can grade progress to level 6, 7 and 8 respectively. i.e. grade progress over 2 salary levels. These employees must apply for vacant funded posts graded on those salary levels. (emphasis added) This provision does not do away with the provisions of the Job Evaluation system in the public service Average performers shall grade (salary level) progress after 15 years Accelerated Grade Progression will be as follows An employee who has performed above satisfactory for 12 years cumulatively in a specific salary level, shall grade (salary level) progress from salary level 6 to 7 or from salary level 7 to 8. Only 30% of the employees per year may be awarded grade progression commences with effect from 1 April Recognition for accelerated grade progression commences with effect from 1 April Circular 2/2009 (dated 11 September 2009) furthermore reads as follows Salary (Grade) Progression model 7.6 The grade progression model is introduced based on the following principles Posts are grade based on the outcome of Job Evaluation, unless indicated otherwise in the Determination. The grade determined with job evaluation therefore forms the basis from which employees can receive grade progression Recognition of performance; and Completed continuous years of service on a specific salary level. and 7.9 Progress of employees on salary levels 4 to Employees who occupy posts graded on salary levels 4, 5, 6 or 7 respectively, and who have completed 15 Page 7 of 9

8 years of continuous service in the particular salary level on which at least a satisfactory rating in their most recent performance assessments, shall progress to salary levels 5, 6, 7 or 8 respectively In practical terms, this means the following (a) when an employee is appointed in a post graded on salary level 4, he/she may only progress to salary level 5 whilst he/she is occupying a post on salary level Circular 29/2011 (dated 7 April 2011) furthermore reads as follows: Issues emanating from the implementation of Resolution 3/2009 (grade progression) 4.1 Employees with 15 years service on a specific level Employees with 15 years of service who are occupying posts that are job evaluated at a lower salary level than on what they are remunerated (out of adjustment), e.g. an employee who is occupying a post at level 4 and remunerated at salary level 6, cannot progress to salary level 7 (Emphasis added) 5.6 Having regard to the above, I align myself with Respondent s argument/interpretation and application of the said Resolution (collective agreement). The Applicants, being appointed on posts graded on job level 4 (adjusted to salary level 6) are not entitled to progress/upgrade to salary level 7 in terms of the said provisions. This stance is also supported by PSA obo Rapitsi SJ v Department of Justice and Constitutional Development /PSCB 90-12/13 (PSCBC); PSA obo Sethaiso KJ v Department of Justice and Constitutional Development /PSCB585-11/12 (PSCBC). 6. Award In case PSCB152-12/13 the following Award is rendered 6.1 The Applicants are not entitled to progress/upgrade to salary level 7 within the context of Resolution 3/2009. Page 8 of 9

9 6.2 No order as to cost is made. Signature: Senior Arbitrator: Martinus van Aarde Page 9 of 9