Panellist/s: Karen Kleinot Case No.: PSCB /16 Date of Award: 8 Aug In the ARBITRATION between:

Transcription

1 ARBITRATION AWARD Panellist/s: Karen Kleinot Case No.: PSCB /16 Date of Award: 8 Aug 2016 In the ARBITRATION between: PSA obo Maine & 5 Others (Masakale, Lephalo, Dijane, Motluantlaedi, Sebogodi) (Union / Applicant) and Department of Health- Free State (Respondent) Union/Applicant s representative: Union/Applicant s address: Telephone: Telefax: Respondent s representative: Respondent s address: Telephone: Telefax: Mr. J Greeff obo Maine & 5 Others jaco.greeff@psa.co.za Mr. L Mapena

2 DETAILS OF THE HEARING 1. The matter was scheduled for arbitration on 25 July 2016 at Bophelo House, Department of Health, Bloemfontein, Free State. The parties agreed that the facts were not in dispute; a common bundle was tendered and constitutes part of the record. The parties agreed to submit heads of argument on 5 August ISSUE IN DISPUTE 2. To determine the interpretation and application of resolution 1 of 2007 as it pertains to the application of overtime. BACKGROUND TO THE DISPUTE 3. A dispute about the interpretation and application of resolution 1of 2007 was declared. The focal point of this dispute is whether the Respondent has adhered to the Collective Agreement as per the clauses that relate to overtime, 9.1 and 9.2; 9.1. Overtime on a Sunday or public holiday shall be 2 x basic salary of the employee, without the option of granting time off. All other overtime shall be 1.5 x basic salary of the employee, without the option of granting time-off. This provision excludes employees on commuted overtime. 9.2 The basis for the calculation of overtime worked shall be the actual salary notch of the employee provided that it shall not be higher that a basic salary of R per annum. This amount will be increased by the percentage of the annual general salary adjustment with effect of 1 July of each year, commencing 1 July This provision excludes employees on commuted overtime. 4. In the event of the Applicants claim succeeding the Applicants seek payment of the outstanding overtime. SURVEY OF THE EVIDENCE Applicant s version 5. The Applicants submit that the Pharmacy keys are not supposed to be handled by the pharmacy assistants. However the pharmacy assistants are required to open and lock the pharmacy. The Applicants submit that they have not been paid overtime from July When letters of approval were sought this was not forthcoming from the HOD. Despite such the pharmacy assistants were required to work overtime. 2

3 6. It is submitted that Mr. Masakale worked on 19 and 20 September 2015 being a Saturday and Sunday. He worked 17 hours and 30 minutes for September In December he worked Saturday and Sunday overtime 12, 13 and 19 and 20 December The total hours he worked were 35 hours. 7. Mr. Maine worked 26, 27 September 2015, total hours 17hours and 30 minutes. 8. Mr. M Lephalo worked overtime on 29 & 30 August total hours 17 and 30 minutes. September 2015 he worked on 12, 13 and accrued 17 hours and 30 minutes overtime. November 2015 he worked 7, 21, 8, 22, and he accrued 35 hours overtime. December 25, 26, 27 and he accrued 30 hours overtime. 9. LP Motluantlaedi worked on the 1, 2 15, 16 August and worked 35 hours overtime. In October he worked on the 24, 25 October 2015 and accrued 17 hours and 30 minutes overtime. In January he performed overtime on 1, 2, 3 Jan, accruing 27 hours and 30 minutes. 10. KG Sebogodi worked on 11, 12 July and accrued 17 hours and 30 minutes. On 8,9,10 August overtime was worked and he accrued the total of 27 hours and 30 minutes. On 3, 4 and 31 October he worked overtime and accrued 25 hours overtime. In November he worked 1, 14, 15, the overtime he accrued totaled 27 hours and 30 minutes. 11. L P Dijane worked overtime in July on 18, 19 and 26 July, this totals 27 hours and 30 minutes of overtime. On 8, 9, 10, 29 and 30 August he worked overtime and this totals 45 hours. On September 12, 13 overtime of 17 hours and 30 minutes was worked. In November he worked overtime on 1, 28, 29, totaling 27 hours and 30 minutes. In December overtime was worked on 25, 26, 27 December totaling 30 hours. SURVEY OF ARGUMENT 12. Mr. Greeff argued that the applicants were pharmacy assistants in Bloemfontein. They were forced to work overtime due to staff shortages. In terms of the collective agreement the Respondent is bound by the terms pertaining to overtime but has failed to pay the applicants. 13. There was no argument tendered by the Respondent. 3

4 ANALYSIS OF EVIDENCE AND ARGUMENT 14. The issue is an interpretation and application of Resolution 1 of 2007, an application for payment of overtime worked. 9.1 Overtime on a Sunday or public holiday shall be 2 x basic salary of the employee, without the option of granting time off. All other overtime shall be 1.5 x basic salary of the employee, without the option of granting time-off. This provision excludes employees on commuted overtime. 9.2 The basis for the calculation of overtime worked shall be the actual salary notch of the employee provided that it shall not be higher that a basic salary of R per annum. This amount will be increased by the percentage of the annual general salary adjustment with effect of 1 July of each year, commencing 1 July This provision excludes employees on commuted overtime. 15. Collective agreements are a consequence of parties reaching consensus over a number of issues and in this case the terms and conditions of service pertaining to overtime. In a dispute about the interpretation and application of a collective agreement a purposive approach is taken in order to give effect to the provisions of the collective agreement. Disputes involving collective agreements examine the meaning that is the interpretation of words in a context and the application of such a clause to a group of workers or a situation. In terms of s 24 a dispute may be resolved by arbitration. The Act is silent in terms of remedies and enforcement of such an award is implemented in terms of S142A. 16 In Hospersa obo T.S Tshambi and the Department of Health Kwa Zulu Natal DA 1/2015 (LAC) the court reflected the test for disputes involving interpretation and application disputes. The court was at pains to point out that the arbitrator is obliged to determine the true nature of the dispute. The court reflected that interpretation examined the meaning of words and application was how the clause or item was applicable i.e. whether the activity applied to the works and held that this phrase should not be read disjunctively. 17. This case involves non- payment of overtime. There is no evidence before me that this group of employees does not qualify for overtime. Further there is no dispute that this overtime was indeed worked. There is equally no explanation from the Respondent as to why this overtime was not paid. Consequently I find that the clauses in Resolution 1/2007 apply to the applicants. Therefore the Applicants are entitled to payment of their overtime. 4

5 AWARD 18. The interpretation and application of Resolution 1 of 2007 is incorrect. 19. The Respondent is ordered to pay the Applicants overtime as follows: i) Mr. L Masakale September 2015 overtime of 17 hours and 30 minutes December 2015 overtime of 35 hours ii) Mr. B Maine September 2015 overtime 17 hours and 30 minutes iii) Mr. M Lephalo August 2015 overtime 17 hours and 30 minutes September 2015 overtime 17 hours 30 minutes November 2015 overtime of 35 hours December 2015 overtime of 30 hours iv) Mr. L P Motluantlatedi August 2015 overtime 35 hours October 2015 overtime 17 hours 30 minutes January 2016 overtime 27 hours 30 minutes v) Mr. K G Sebogodi July 2015 overtime of 17 hours and 30 minutes August 2015 overtime of 27 hours and 30 minutes October 2015 overtime of 25 hours November 2015 overtime of 27 hours and 30 minutes 20. Payment of such overtime must occur within 21 days receipt of the award. Karen Kleinot (Arbitrator) 5