DEPARTMENT OF EDUCATION, EASSTERN CAPE JURISDICTIONAL RUILING

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1 IN THE PUBLIC SERVICE CO-ORDINATING BARGAINING COUNCIL HELD AT PORT ELIZABETH CASE NO: NEHAWU obo PETROS APPLICANT and DEPARTMENT OF EDUCATION, EASSTERN CAPE RESPONDENT JURISDICTIONAL RUILING Background 1. The Applicant, Ms Petros, was employed by the Lovedale Further Education and Training College ( FET College ) as a general assistant. A disciplinary hearing against her was conducted by the council of the College, which resulted in her dismissal. With the assistance of her union she referred a dispute concerning the interpretation or application of a collective agreement, PSCBC Resolution 1 of 2003, 1 to the Public Service Co-ordinating Bargaining Council (PSCBC). 2. The matter was enrolled for conciliation on 29 September The Respondent, during the conciliation proceedings, raised in limine that the PSCBC lacked jurisdiction to conciliate and arbitrate the dispute as the Respondent was not the employer of the Applicant. The conciliation was nevertheless conducted and did not 1 Dealing with the disciplinary code and procedures in the public sector.

2 resolve the dispute. A pre-arbitration conference was scheduled for 21 October 2011, during which the Respondent again raised its challenge to the PSCBC s jurisdiction. 3. The Respondent thereafter filed a notice of motion, requesting the PSCBC to make a ruling on its requisite jurisdiction to entertain the matter, or the lack thereof. The union, on behalf of the Applicant, responded and the PSCBC requested the undersigned arbitrator to consider the issue on the papers. Issue to be decided 4. It is necessary to determine whether or not the PSCBC has jurisdiction to arbitrate the dispute referred to it by the Applicant. Respondent s submissions 5. The Respondent challenges the jurisdiction of the PSCBC on the basis that it is not the Applicant s employer, that it was incorrectly cited as the Respondent in this matter and, accordingly, that the PSCBC lacks jurisdiction to entertain the dispute referred to it by the Applicant. 6. The Respondent referred to the Further Education and Training Colleges Act 16 of 2006 ( FET Act ) in terms of which an FET college is the employer of all lecturers and support staff. They are appointed by the council of a college and their conditions of employment, functions and duties are determined by the council. Furthermore, they are accountable to the principal of the college. Union s submissions 7. According to the union, all FET colleges are managed by the Department of Education, like the section 21 schools. 8. Colleges have two categories of employees: some general assistants and lecturers are employed by the Department of Education in terms of the Public Service Act ( PSA ) and the Employment of Educators Act ( Educators Act ) respectively. The dispute resolution forums for these employees are the PSCBC and the GPSSBC (General Public Service Sectoral Bargaining Council). The second category of employees is the general assistants and lecturers employed by a college council and

3 who have to refer their disputes to the CCMA (Commission for Conciliation, Mediation and Arbitration). 9. With reference to GPSSBC Resolution 1 of 2007 (transfer of employees to colleges), the union explained that, although the Department of Education endeavoured to transfer all employees employed by it to the colleges, this did not materialise due to financial constraints of the colleges. The union submits that Resolution 1 of 2007 has not been implemented due to financial constraints experienced by colleges. 10. With reference to the definition of employee in the Labour Relations Act 66 of 1995 ( LRA ), the union submits that the Applicant is assisting the employer in carrying out its business of providing education. The colleges are the responsibility of the Department of Education as section 19(3) of the FET Act requires a college principal to report to the head of department (i.e. the Department or the Respondent) in terms of his or her performance agreement. Moreover, the Applicant has to render services at a place and times agreed to by the parties. 11. PSCBC Resolution 1 of 2003 defines employer as the head of department (or designated member of the department). In terms of the FET Act a college council must appoint staff and remunerate them from funds allocated in accordance with norms and standards contemplated in section 23 and other income received by the college. The Applicant was appointed by the Department of Education and is remunerated by the Department. She receives salary increases negotiated in the PSCBC. Therefore, the Department is her employer. 12. The Applicant was previously employed in Uitenhage and requested a transfer to King Williamstown. Her transfer was approved by the Department of Education and she was placed at Lovedale College. 13. The union, relying on the transitional arrangements (par 3.9) contained in Resolution 1 of 2007, is of the view that the GPSSBC remains the dispute resolution forum for employees such as the Applicant as no bargaining council for the FET sector has been established. Indeed, the Applicant still has levies being deducted from her salary, which is paid by the Respondent, for the benefit of the GPSSBC and the PSCBC.

4 14. The union contends that, because of the above reasons, the Applicant is an employee of the Respondent (the Department of Education) and, therefore, she cannot be disciplined in terms of the college s disciplinary code and procedures. She must be afforded an opportunity to answer to allegations of misconduct by the Respondent. Because the Applicant is an employee of the Respondent her dispute should be determined by both the PSCBC and the GPSSBC. Analysis of argument 15. The union s approach to Resolution 1 of 2007 is contradictory. On the one hand the union submits that the resolution has not been implemented because of financial constraints at FET colleges. On the other hand, the union relies on the resolution to substantiate its arguments. The reality of which judicial notice is taken is that the resolution has taken effect in September 2007, the result of which was that the vast majority of college employees (lecturers and support staff) who used to be employed by the Respondent were transferred, in an LRA section 197 exercise, to their respective colleges when the colleges became autonomous in terms of the FET Act. The college became the employer of said staff members. Indeed, Resolution 1 of 2007 refers to a college as the new employer and, in terms of the FET Act, the college is the employer with the college council making appointments and determining conditions of employment. The simple answer is thus that if the Applicant was transferred to the college, she is an employee of the college. The college is her employer and not the Respondent. If the Applicant was one of the handful of employees who remained with the Department of Education, the Respondent is her employer. 16. The union s reliance on the definition of employee in the LRA does not assist in the present circumstances as its contention that the Applicant is assisting the Respondent in carrying out its business of providing education is incorrect. The Applicant evidently assists the college in carrying on its business. 17. Neither does the union s reliance on the definition of employer in PSCBC Resolution 1 of 2003 assist. It is correct that, for the purposes of said resolution, the head of department put differently, the Respondent is the employer, but this can only be correct where Resolution 1 is applicable. And, it is only applicable in the public service (the majority of national and provincial departments).

5 18. The fact that the Applicant s payslip is issued by the Respondent is not definitive. It may be an indication that the Respondent is her employer. On the other hand though, it may be because of an arrangement that the Respondent will see to it that colleges cope financially see paragraph 3.8 of Resolution 1 of Furthermore, paragraph 3.6 of Resolution 1 of 2007 provides as follows: The payment of salaries and benefits of those employees transferring to the New Employer [college] shall be paid by the Old Employer until such time as the New Employer has operational capacity to do so. 19. The further fact that levies for the benefit of the PSCBC and the GPSSBC are being deducted from the Applicant s salary is also not definitive in indicating that the Applicant is an employee of the Respondent. A somewhat peculiar arrangement exists in the public service bargaining councils since the FET Act took effect and the resultant transfer of employees to colleges. Collective agreements were adopted by the GPSSBC and the ELRC in terms of which lecturing staff would fall within the scope of the ELRC and support staff within the scope of the GPSSBC. Hence, the levying of subscriptions against employees salaries for the benefit of these bargaining councils and the PSCBC. It is doubtful whether this is correct as the GPSSBC and ELRC have now adopted employees who are not public servants and the collective agreements they concluded to do so can be nothing else than ultra vires (see below). 20. The union further submitted that the approval by the Respondent of the Applicant s transfer provides proof of the Applicant being an employee of the Respondent. This is not necessarily so. The union did not provide a date of the request for or the actual transfer. If the transfer was approved prior to the FET Act taking effect, the Respondent was still the Applicant s employer and the transfer would have had to be approved by the Respondent. 21. The union, relying on the transitional arrangements in Resolution 1 of 2007, is of the view that the GPSSBC is the appropriate dispute resolution forum because a bargaining council for the FET sector has not yet been established. And then the union adds that disputes should be resolved by both the GPSSBC and the PSCBC. It should be noted that disputes cannot be entertained by both the GPSSBC and the PSCBC. The nature of the dispute will determine which one of the two councils has jurisdiction to hear the dispute. For example, if a dispute concerns the interpretation/

6 application of a PSCBC collective agreement, the PSCBC only has jurisdiction; the GPSSBC cannot entertain that dispute. The converse holds true. 22. Section 54(3) of the FET Act provides, as a transitional arrangement, that the PSCBC and the ELRC will continue to be the bargaining councils for determining salaries and conditions of employment until such time as a bargaining council is established for the FET sector. 2 Then, in section 21, the FET Act provides for dispute resolution. It is clear that the legislature intended the PSCBC and ELRC in the interim to determine salaries and employment conditions only and not to act as dispute resolution forums. If this was not the intention, there would not have been a separate provision for dispute resolution, which is found in section 21. Section 21 provides for the referral of a dispute about payment or employment conditions to be referred to a bargaining council if the employer or employee parties to the dispute fall within the registered scope of a bargaining council obviously meaning a bargaining council in the FET sector or the CCMA for conciliation and, if unresolved, to the Labour Court for adjudication. A literal interpretation of section 21 leaves one with the conclusion that disputes other than pay or employment conditions disputes will not be dealt with in terms of section 21. It will make no sense and lead to absurd consequences to interpret section 21 in any other fashion because that would mean that the Labour Court will have to entertain disputes concerning ( ordinary ) dismissals, unfair labour practices and interpretation/application, which it ordinarily cannot do. As the FET Act is silent about other disputes, the normal rule must apply for the resolution of disputes as found in the LRA and that is that if a bargaining council has jurisdiction, it will conciliate and arbitrate the dispute (where appropriate). If there is no bargaining council, the CCMA has jurisdiction. As no bargaining council in the FET sector exists, the CCMA has jurisdiction in disputes which do not fit into the section 21-box. 23. The Applicant referred to the PSCBC a dispute concerning the interpretation/ application of the collective agreement dealing with disciplinary procedures. It is not known why this was the chosen cause of action and why a dismissal dispute was not referred. Be that as it may, it is necessary to determine whether the PSCBC has jurisdiction to arbitrate the dispute referred to it. The answer, as observed earlier, is to be found in whether or not the Applicant was transferred to college employment or not. If she remained with the Department of Education, the Respondent is her 2 Note that the GPSSBC does not feature in these transitional arrangements and, in consequence, the provisions in paragraph 3.9 of Resolution 1 of 2007 must be ultra vires.

7 employer, PSCBC Resolution 1 of 2003 is applicable to her and the PSCBC has jurisdiction to arbitrate her dispute. However, considering the submissions of the parties and it must be added, the parties were not very specific it appears that the Applicant was transferred to Loveday College. The college is, therefore, her employer and not the Respondent. The PSCBC accordingly lacks jurisdiction to arbitrate the matter referred to it. 24. If there is evidence to the effect that the Applicant was not transferred to college employment, the parties are at liberty to place that evidence before me in a variation application. Ruling 25. The PSCBC lacks jurisdiction to arbitrate the dispute referred to it by the Applicant. SIGNED AT PORT ELIZABETH ON THIS 18 TH DAY OF DECEMBER Marion Fouché PSCBC Arbitrator