Panellist/s: Karen Kleinot Case No.: PSCB773-15/16 Date of Award: 13 December In the arbitration between:

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1 ARBITRATION AWARD Panellist/s: Karen Kleinot Case No.: PSCB773-15/16 Date of Award: 13 December 2016 In the arbitration between: PSA obo Smith L M (Union / Applicant) and Department of Economic Development-Gauteng (Respondent) Union/Applicant s representative: Ms Y Ralawe Union/Applicant s address:. Telephone: Telefax: Yolanda.ralawe@psa.co.za Respondent s representative: Mr. S Nomika Respondent s address: Telephone: Siyanda.nombika@gauteng.gov.za 1

2 DETAILS OF THE HEARING 1. The matter was set down for arbitration on 25 November 2016 at the offices of the PSA in Johannesburg. Ms Y Ralawe represented Ms Smith and Mr. Nombika represented the Department of Economic Development. The matter proceeded and parties agreed to submit heads of argument on 9 December The parties agreed that no evidence need be led as the evidence led in the Mhlongo matter PSCB744-15/16 applied to this case as well. The parties agreed that this evidence could be used in this matter, Smith PSCB773-15/16. The parties agreed to submit closing argument on 9 December ISSUE IN DISPUTE 2. The issue in dispute is to determine the interpretation and application of resolution 1 of 2012, in particular whether clause 18.1 is applicable to Ms Smith an Assistant Director. BACKGROUND TO THE DISPUTE 3. Ms Smith was appointed as an Assistant Director 1 July 2011 on level 9 and alleges that in terms of clause 18.1 she qualifies for the upgrade to level 10 in terms of clause SURVEY OF THE EVIDENCE 4. It was indicated that when Ms Smith applied for the post there was no level reflected. 5. As the parties agreed that the same issues were canvassed in Ms Mhlongo s case that the same evidence would be relevant for this case. 6. Ms Makhubele the Deputy Director Organizational Development in Economic Development testified. A grievance was lodged in terms of the job evaluation. Ms Makhubele explained that before implementing resolution 1 of 2012 they had to establish if there were job evaluations done on the post. None could be found as a result this was reported to the CEO. A decision was taken that if there was no job evaluation one would be conducted. 7. A job evaluation was done and the post was found to be at a level 9 this after the results of the job evaluation scores and interviews were considered by the job evaluation panel. 2

3 8. Resolution 1 of 2012 clause 18.1 could only be implemented once a directive was received from the MPSA. This is dated February This indicated that implementation was in conjunction with new job weight ranges that were issued in The new weight ranges established a minimum and maximum range. A decision was made to obtain the old job evaluation results to obtain the scores on the salary weight ranges and compare these with the new job evaluation weight ranges. The old job evaluation scores could not be found for Ms Smith s post. As there were no old job evaluation scores the DPSA advised them that without these old scores the posts were not subject to automatic upgrade. The Department then conducted a job evaluation and looked at the new weight ranges. 9. Ms Makhubele explained that resolutions are implemented by way of directives issued by the DPSA or the MPSA. In terms of the circular issued on 15 March 2013 it was clear that clause 18.1 could only be implemented if the posts were already graded 10 and 12 and were at levels 10 & 12 in terms of the revised job weight ranges. This refers to comparing the old job evaluation scores and job weight range with the new job weight range to determine the level. Without the job evaluation result there is no comparison and there can be no implementation of resolution 1/ This circular did refer to an earlier circular dated in 2011, 12 September. 10. The job evaluation was conducted by the Gauteng Department of Finance. Ms Makhubele disagreed that the MPSA was the custodian of job evaluation as Ms Smith s job did not fall within HR or Strategic services. It was explained that the department could not automatically upgrade the post. 11. Although the structure of the entity reflects the post at level 10 it is not a job evaluation as required by the Resolution. Ms Makhubele stated that prior to resolution 3 of 2009 the post was at level 10 and now after the job evaluation it was at level 9. Ms Makhubele agreed that Ms Smith was appointed when resolution 3 of 2009 was in effect and this meant that she was appointed at level Ms Makhubele denied that the process followed was unfair in that there was a job evaluation and described the process conducted. Ms Makhubele disagreed that the post was at a level 10 due to the budget provided by Treasury and added that this was not a job evaluation which was necessary for the implementation of resolution 1 of 2012, clause

4 SURVEY OF THE ARGUMENT 13. Ms Ralawe argued that when Ms Smith applied for her position the advert did not reflect the level that the position was on, this was also not reflected in the letter of appointment. Resolution 3 of 2009 allows employees whose posts which are graded 10 and 12 to be remunerated on this level. Clause reflects that those posts not covered by OSD as per resolution 1 of 2007 and 3 of 2009 an appointed as assistant directors and deputy directors shall with effect from 1 July 2010 be on salary level 9 and 11 respectively. This was amended by clause 18.1 of resolution 1 of This allows those employees whose posts which are graded on salary level 10 and 12 to be appointed and remunerated on salary level 10 and 12 respectively. It is argued that Ms Smith s post was at level 10 and that the structure of the department also supports this conclusion that the post is at level 10. There is no evidence that the structure has been amended and the variance report reflects that the department has a budget for a level 10. There was no evidence that prior to Ms Smith s appointment that the post was evaluated. It was argued that there was no intention to re-evaluate posts rather to enforce resolution 3 of In order for the structure to be accepted there had to have been an evaluation and this would have given rise to the Treasury Department releasing funds for the salary at level 10. Thus it was argued that the post was always at level 10. All other Assistant Deputy Directors are at level 10 and remunerated for such there is no justification for remunerating Ms Smith at level 9. Ms Ralawe argued that as no evidence was presented about prior evaluation this reflected that the post was always at level 10. The respondent s argument that as there was no job evaluation this cannot form the basis for the argument that the applicant does not qualify for an upgrade. There was no intention to re-evaluate the post. There is also no support that job evaluations are necessary for the implementation of clause Ms Maoka argued that in order to implement clause 18.1 there had to be a job evaluation as per the MPSA directives. In order to determine appropriate remuneration the post was subject to a job evaluation. This was done and it was graded at level 9. It was argued that in order to implement clause 18.1 uniformly there was a condition that such positions were previously graded at salary levels 10 and 12 respectively in terms of the approved job weight ranges. Ms Makoa argued that Ms Smith was appointed on a level 9 and there was no prior evaluation at level 10. The Department evaluated the job as per the directives this came out on a level 9 and that this was part of the implementation of clause Therefore it was argued that the Respondent had correctly applied and implemented clause

5 ANALYSIS OF THE ARGUMENT 15. The issue is whether Ms Smith qualifies to be upgraded to level 10 as per clause 18.1 of the Collective Agreement. This dispute involves the application and interpretation of clause Collective agreements are the product of the parties consensus. When interpreting such agreements a purposive approach is taken as well as being cognizant of the principles laid down for the interpretation of statutes. In the National Joint Municipal Pension Find v Endumeni Municipality 2012 (4) SA 593 (SCA) the court held that Interpretation is the process of attributing meaning to the words used in a document, be it legislation or some other statutory instrument, or contract, having regard to the context provided by reading the particular provision or provisions in the light of the document as a whole and the circumstances attendant upon its coming into existence. Whatever the nature of the document, consideration must be given to the language used in the light of the ordinary rules of grammar and syntax; the context in which the provision appears; the apparent purpose to which it is directed and the material known to those responsible for its production. Where more than one meaning is possible, each possibility must be weighed in the light of all these factors. The process is objective and not subjective. A sensible meaning is to be preferred to one that leads to insensible or unbusiness like results or undermines the apparent purpose of the document. The inevitable point of departure is the language of the provision itself, read in context and having regard to the purpose of the provision and the background to the preparation and production of the document. 16. The question is whether this clause applies to Ms Smith. Ms Smith was appointed as assistant director 1 July 2011 and at the time her post level was unspecified as this was not listed in the advert or in the appointment letter. 17. Clause 18.1 states as follows: 18 Amendments to PSCBC Resolution 3 of Clause of PSCBC Resolution 3 of 2009 is hereby amended to allow employees whose posts are graded on salary levels 10 and 12 to be appointed and remunerated on salary levels 10 and 12 respectively. 18. In terms of the Public Service Act there are directives from the Minister as to how to apply the Collective Agreement. The Minister is entitled to do so under these sections: S5(6)(a) that any provision of a collective agreement as contemplated in subsection 4 concluded on or after the commencement of the Public Service Amendment Act, 2007, shall, in respect of conditions of service for employees appointed in terms of this Act, be deemed to be a determination made by the Minister in terms of section 3(5). 5

6 Section 5(6)(b) which stipulates that the Minister may, for the proper implementation of the collective agreement, elucidate, or supplement such determination by means of a directive, provided that the directive is not in conflict with or does not derogate from the terms of the agreement. 19. The background of the dispute is that in terms of Resolution 3 of 2009 this indicated that The commencing salary for all employees on post not covered by any OSD as per PSCBC resolution 1 of 2007 and 3 of 2009 and appointed as assistant directors and deputy directors shall with effect from 1 July 2010 be on salary level 9 and 11 respectively. A circular issued by DPSA on 12 September 2011 indicated that where job salary ranges overlapped the post had to be graded and the lower job weight range attached. A further directive dated 25 February 2013 deals with those posts graded at 10 or 12 after resolution 3 of It is this directive that then speaks to the new weight ranges and comparing the existing or old salary ranges to the new salary ranges. This spells out that the job grade will be reconsidered and the job weight range attached to the salary will be used to determine salary level. This goes on to say in point (iv) To ensure the implementation of 18.1 of the Resolution is done in a uniform manner, the MPSA directed in terms of PSR Chapter 1, Part G- that only employees serving in posts that were graded on salary levels 10 and 12 since the implementation of Resolution 3 of 2009 up to and including 31 July 2012, be automatically absorbed into the regarded posts with effect from 1 August 2012, on condition that such posts were previously job evaluated and graded at salary levels 10 or 12 in terms of the revised job weight ranges as specified in terms Circular 16/P dates 12 September This is reiterated in a directive signed on 15 March 2013 and is echoed in a directive dated 5 August 2014 where it states as follows 5 Jobs in corporate services appear transverse in all departments in the Public Service and similar jobs must be graded similarly. Departments are required to consult MPSA on the grading of ASD and DD posts/ jobs on salary levels 9,10,11,12 within corporate services (Program 1) with effect 1 August The following principles shall apply in this regard (a) The Minister directs in terms of PSCBC resolution 1 of 2012 Clause 18.1 and as set out in Circular 16/P dated 25 February 2013 that all posts/jobs that were graded on salary levels 10 and 12 between 1 July 2010 and 31 July 2013 and whose incumbents were appointed on salary levels 9 and 11 be automatically upgraded to salary levels 10 and 12 respectively with effect from 1 August 2012, subject to the availability of supporting job evaluation results The above circulars reflect the intention of the Minister to link the job evaluation to the implementation of clause The key issue in this case is whether clause 18.1 is dependent on a job grading or job evaluation. The wording reflected in clause 18.1 is posts are graded on salary levels 10 and 12. In the 6

7 arbitration award Public Service Association and Others and Department of Public Service and Administration PSCB88-13/14; 2014; it was held that clause 18.1 should not be effected in a staggered or staged approach or in a manner that differentiates between categories of employees especially core and corporate services employees. The arbitrator held that the clause must be applied indiscriminately to all employees whose posts on 1 August 2012 were graded on salary levels 10 and 12 and to appoint and remunerate them on salary levels 10 and 12. The arbitrator commented that the directives did not have the same weight as the collective agreement. The arbitrator went further and stated that he had not heard evidence that the job grading was necessary for the implementation of clause 18.1 and he found that this was a parallel and separate process. 22. In this matter evidence was led as to why job evaluation was necessary for the implementation of 18.1 and in the main it is to avoid the invidious position of grades being applied in an arbitrary manner introducing inconsistency which is what the amendment to clause 18.1 sought to avoid. 23. In order to place incumbents on level 10 and 12 respectively the jobs have to be graded, thus there must be a job evaluation in order to determine the base line. To separate the job evaluation and the resultant grading from clause 18.1 would result in an unbusiness like approach and result in placing incumbents at arbitrary levels without foundation for such. The wording reflected in clause 18.1 to allow employees whose posts are graded on salary levels 10 and 12 to be appointed and remunerated on salary levels 10 and 12 respectively. The language posts are graded in the past tense, refers to a process where posts are given a level in terms of the system of grading used by the Department. This as evidence has been led is done by conducting a job evaluation process. This process involves the incumbent filling in questionnaires, interviews and the evaluation of tasks and then an outcome which is finally evaluated by a panel. Are graded implies that the posts have been evaluated in the past or that this is the current level of the post. There was no evidence that the post was graded. By virtue of this word graded a process was contemplated that established the level of job functions with the actual post linked to market related remuneration. Thus clause 18.1 does contemplate a job evaluation process which determines the levels of remuneration. 24. The question is whether the directives as stated above are in conflict or derogate from the terms of the collective agreement. The issue in this case is that there is no prior job evaluation or scores that could be compared to the new job weighting range. A job evaluation was conducted and the 7

8 result was that the post was graded at 9. The evidence does not reflect that the MPSA were indeed consulted as per circular 4 of This indicates that where a job evaluation and grading process has never been conducted and where there are no records of any job evaluation been conducted in the past, such jobs/posts should be job evaluated and there should be consultation with the MPSA and full motivation should be provided why these jobs/posts should not be regraded from a running date. There was a grievance and an explanation to the Applicant but consulting the MPSA did not occur. 25. In order to comply with clause 18.1 there must be a base line or grade for the automatic upgrade to occur either 10 or 12 that is the post must be at a 10 or 12. In this case after an incomplete job evaluation, as there is no evidence that the MPSA was consulted, the post was graded at 9. Evidence was led that due to the salary cost being allocated at a grade 10 and variance report reflecting such as well as the structure that these point to a grade of 10. While the two documents do infer that the post is graded at 10 this does not fully reflect how the post came to be at that level and thus it does not meet the condition of a job evaluation or grading process as per clause Therefore clause 18.1 is not applicable. 26. The post was then graded and came out at level 9. There is insufficient evidence that the post was that of a level 10 other than the structure and variance report. These do not reflect how the post was reflected at a level 10 that is how it came to be recorded as such for there must have been a basis for this. The applicant has not discharged its onus of proof in this respect. 27. Consequently the job evaluation that was done is still in effect, despite a grievance, and this has determined that Ms Smith is at level 9. As the post is now graded at level 9 clause 18.1 is not applicable to Ms Smith. AWARD 28. The Respondent has correctly interpreted and applied clause 18.1 of Resolution 1 of Karen Kleinot (Commissioner) 8