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[2013] ZALCJHB 336
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Minister Of Correctional Services v General Public Service Sectoral Bargaining Council and Others (JR2882/11) [2013] ZALCJHB 336 (27 May 2013)
REPUBLIC
OF SOUTH AFRICA
THE
LABOUR COURT OF SOUTH AFRICA,
IN JOHANNESBURG
JUDGMENT
OF
INTEREST TO OTHER JUDGES
CASE
NO: JR 2882/11
In
the matter between:
MINISTER OF
CORRECTIONAL SERVICES
Applicant
AND
GENERAL PUBLIC
SERVICE SECTORAL BARGAINING COUNCIL
First
Respondent
M MPHAPHULI (
N.O.
)
Second
Respondent
POPCRU
OBO MEMBERS
Third
Respondent
Heard:
23 May 2013
Delivered:
27 May 2013
Summary:
(Review – interpretation of
collective agreement – determination of correct entry level
salary
for ‘ring-fenced’ group of learners –
misdirection by arbitrator – failure to interpret the actual
wording
of the relevant provisions in context as starting point)
REASONS FOR JUDGMENT
LAGRANGE,
J
The
order
[1]
My reasons for the following order handed
down on 27 May 2013 are set out below.
“
Order
The
arbitration award handed down by the third respondent
on
25 June 2011 under case number GPBC 663/2010 is reviewed and set
aside.
The third respondent's
award that ring-fenced students as contemplated by clause 12.2 of
resolution 2/2009 were to be translated
to R 91,899 per annum from
the date on which they completed their training program is
substituted with an award that ring-fenced
student correctional
officials as contemplated by clause 12.2 of resolution 2/2009 were to
be translated to R72,543 per annum,
being the first notch of grade
CB1-1 of the Occupational Service Dispensation for Centre-Based
Correctional officials.
No order is made as to
costs.”
The
review application
[2]
The issue in dispute which was decided in
arbitration proceedings concerns the remuneration due to a certain
category of students
on completion of their training. The employer,
the Department of Correctional Services, had argued that their
correct salary level
would be R 72,543 per annum, whereas the union,
The Public Servants Association ('the PSA’) contended that the
correct salary
level was R 91,899 per annum. The arbitrator
effectively ruled in favour of the employees by finding that the
students in question
should have their salaries "translated"
to the higher level on completion of their training program.
[3]
The group of learners in question was
identified in clause 12.2 of resolution 2/2009 of the General Public
Service Sectoral Bargaining
Council, which states:
"Current ring fenced
Student Correctional Officials shall retain their current conditions
of employment and upon completion
of the training program, shall
translate to the first notch of the OSD for full-time employment. No
recognition of experience shall
apply to these employees."
[4]
The object of resolution 2/2009, which came
into effect on 1 July 2009, was to implement an Occupation Specific
Dispensation (‘OSD’)
for Correctional Service officials.
The resolution distinguished two general classes of Officials namely,
centre-based officials
and non-centre-based officials. It further
distinguished two learner sub-categories of centre-based recruits
namely, learners at
entry-level in production who are required to
undergo basic training and "Current Ring Fenced Student
Correctional Officials"
as described in clause 12.2 above.
The arbitrator’s
reasoning
[5]
In his award the arbitrator distinguished
three distinct groups of learners, which was a classification that
the parties had apparently
agreed upon in the arbitration. The first
group were those who commenced and completed basic training before 1
July 2009 before
the implementation of the OSD. The second group
commenced training before 1 July but only completed their training
afterwards.
In the case of both these groups they were appointed on
probation for a period of 12 months and remunerated on salary level
3.
The third group started and completed their training after 1 July
2009 and were dealt with in terms of clause 12.1 of the OSD
agreement.
[6]
The arbitrator accepted that the position
of students in the first group and the third group was clear, and it
was only the treatment
of the intermediate category of learners who
were still in training on 1 July 2009 that presented a problem. The
arbitrator identified
the issue as being a question of whether the
second group of students should be benchmarked against the first or
the third group.
The arbitrator concluded that the solution was to be
found in the resolution, the annexes thereto and the Implementation
Determination
of the Minister for Public Service and Administration.
The arbitrator reasoned:
"The resolution made
peculiar provision in terms of its Clause 12.2 where reference was
made to ring fencing. The ordinarily
everyday and grammatical meaning
of ring fence can only be to protect, make safe or preserve.
The protection was in the
interest of the affected students. Interest has to be there for an
advantage of having been in the service
of the respondent at OSD
implementation date, continued remuneration, no requirement to apply
for full-time employment on completion
of training and recognition of
the fact that their training was in progress or underway when the OSD
came into play.
...
It was common cause that
the previous student intakes and remunerated at level 5 prior to 01
July 2009. This was converted to a
salary rate of R 91,899 effective
01 July 2009.
Like for like ring fenced
students should as a matter of fact translate to R 91,899 on
completion of training as was the case with
their peers.
The affected students
will be in a less favourable position as compared to new recruits and
ring fencing would not serve any purpose
if it did not afford them an
advantage.
The affected students
tend to be far worse off measured against the new recruits and were
better measured against previous student
intakes.
Ring fence would lose its
meaning if not understood in a manner that would promote the
interests of those protected.
All factors considered is
my conclusion that there is more merit in the submissions for the
interpretation of the resolution as
argued by the applicant party,
namely that: the ring fenced students should upon completion of their
training be remunerated on
salary level 5 as substituted by the
translation annual salary rates of R 91,899.”
[7]
At this juncture it must be mentioned that
it is immediately apparent that the arbitrator appears to have
arrived at his finding
not based on an analysis of the documents
which he identified as containing the solution, but primarily on his
interpretation of
the term ‘ring fenced’.
Grounds of review and
evaluation
[8]
The applicant's first ground of review is
that the arbitrator embarked on an enquiry into the fairness of
paying the second group
of students and entry-level salary of R 72,
543 when they completed their qualifications, instead of determining
what it should
be on a proper interpretation of the resolution.
Secondly, the applicant's other principal ground of review is that in
consequence
of his misdirected enquiry the arbitrator neglected to
interpret the phrase “shall translate to the first notch of the
OSD
for full-time employment” in clause 12.2. The applicant
argues that if the arbitrator had simply started his enquiry with
an
analysis of the text of the clause and referred to the annex "A1"
attached to the resolution as well as the implementation
determination, he would have realised that the first OSD notch for
full-time employment could only have referred to the first OSD
notch
of CB1-1 of a Security Officer which was R 72,543-00. Most of the
other grounds of review relate to material issues the arbitrator
neglected to deal with because of his misdirection.
[9]
Indeed, Annexure “A1” to the
resolution which set out the new salary structure introduced by the
OSD clearly shows that
a Security Officer at entry-level production
would be placed in OSD band CB1-1 with a starting notch of R
72,543-00. Annexure "B1"
which set out the salary scales
which existing Centre Based officials would translate to, shows that
a correctional officer on
salary level 5 would be translated either
to OSD grade CB1-1, CB1-2 or CB1-3.
[10]
Clause 12.2 of the resolution has already
been cited above. Clause 13.5 of the implementation determination of
the Minister reads:
"Current ring-fenced
Student Correctional Officials shall retain their current conditions
of employment and shall translate
to the Auxiliary Support post as at
1 July 2009. Upon successful completion of the training program is
officials shall translate
to the first notch of the entry-level
production post attached to the Centre Based dispensation, for
full-time employment. No recognition
of experience shall apply to
these officials.
The
only difference between the two clauses is the reference to the
translation of the students to the Auxiliary Support post with
effect
from 1 July 2009. Two of the so-called ‘indicators” for
such a post, which are set out in Annexure "A1"
to the
ministerial determination, state:
·
This Post constitutes a post to
provide for Centre-based Correctional Officials who have not
completed the required training program
and not currently undergoing
training.
·
Centre-based Auxiliary Officials to
apply for vacant, permanent post of Security Officer, Case Officer or
Social Reintegration Officer
grade III, upon successful completion of
training.
(Emphasis added)
[11]
The only place where the salary of R 91,899
appears as the first notch is in the translation key for Centre based
officials appearing
in Annexure B1 to the resolution. That notch is
only applied to a “Case Officer/Reintegration/Security Officer”
at
OSD salary level CBI-2. In Annexure C1 to the ministerial
determination, which is titled "appointment requirements, career
path and post grade progression opportunities for correctional
occupations classified in the Centre based dispensation", the
job title of a Security Officer, Grade II (CB 1-2) sets out the
following appointment requirements:
11.1
Qualification
11.1.1
grade 12, and
11.1.2
Successful completion of the corrections
science learnership;
11.2
Experience:
11.2.1
8 years relevant experience for an official
performing consistently above average on CB 1-1; or
11.2.2
10 years relevant average for an average
performing official on CB 1-1.
[12]
Further, Annexure “D1” to the
Ministerial Determination which describes the recognition basis for
Centre Based entry
level production posts also stipulates at least 10
years of appropriate or recognisable experience after competing grade
12 simply
in order to be placed on the minimum notch for the grade.
[13]
Somewhat cumbersomely, Annexure “A1”
to the resolution describes the post of Centre-based Auxiliary (CBA)
as "Production
Still to Meet Appointment Criteria" and in a
note pertaining to this category states: "Post CBA is created
for
once off translation
of
those employees who do not meet the appointment criteria to post CB1"
(emphasis added). It appears to be common cause on
the papers that
the students in the second category would have been translated to the
CBA post and corresponding salary scale.
[14]
The essence of the respondent’s
contentions in reply is that the arbitrator did in fact determine
what the first notch for
full-time employment was. In effect, he
correctly found that the second group of trainees simply had to be
translated to the new
salary scale applicable to the first group of
trainees who were remunerated previously on salary level 5 and then
were translated
to salary scale R 91,899 on 1 July 2009. The
respondents argued that the object of the ring fencing was clearly to
place the ring
fenced group in the same position as those who had
completed their training before the implementation of the OSD.
[15]
In the applicant's written submissions
before the arbitrator, the applicant said that the implication of
this is that even though
the second group of students were not on
salary level 5 on 1 July 2009, the effect of interpreting the
resolution in the way POPCRU
contended would be to treat them as if
they had been on salary level 5 and accordingly, on completing their
learnerships would
be translated to a salary level of R 91,899 as if
they had qualified before 1 July 2009 and were entitled to benefit
from the once
off translation which applied to permanent employees on
the old (pre-July 2009) salary level 5. It would also mean that the
second
group of students would receive this second translation having
already received a translation when they were placed in the posts
of
Centre-based Auxiliaries.
[16]
What is apparent from the brief exposition
above, is that the arbitrator's analysis and reasoning showed scant
regard for the intricate
construction of the OSD dispensation and the
specific provisions dealing with employees who have not completed
training and the
ramifications of clauses 12.2 and 13.5 in the
resolution and ministerial determination respectively. I agree with
the applicant
that the arbitrator’s starting point was simply
to try and identify the object of ring-fencing a category of learners
instead
of trying to interpret the meaning of the clauses mentioned
in order to properly interpret them. In this regard, one may ask,
could
the arbitrator even have considered why the group was referred
to as ‘currently’ ring fenced officials? Had he done
so
would it not immediately have raised a question in his mind whether
the ring fencing might have come about for reasons not specifically
related to the implementation of the OSD dispensation?
[17]
In any event, he makes no attempt in his
analysis to explain why this particular group of qualified learners
would automatically
fall to be categorised under OSD salary scale
CB1-2, which is a necessary result of his award. The only way in
which any person
could reasonably conclude that an employee fell
within this salary scale would be after considering the
pre-requisites which would
entitle the employee to that level of
remuneration.
[18]
None of the requirements pertaining to OSD
salary scale CB1-2 set out above, read also with the classification
of employees falling
within the category of Centre-based Auxiliaries
can be reconciled with the placement of the second group of learners
on the entry-level
notch of CB 1-2. Yet this is what the arbitrator
managed to do and as a result his conclusion must be regarded as one
that no reasonable
arbitrator would have reached.
[19]
In the circumstances, I am satisfied that
the arbitrator’s award was unreasonable and the result of a
serious misdirection
as to the nature of the enquiry. Consequently,
it stands to be set aside.
Re-evaluation
[20]
On a reconsideration of the evidence, in my
view a proper interpretation of clause 12.2 and clause 13.5 of the
resolution and the
ministerial determination respectively would lead
to the conclusion that the “first notch of the entry-level
production post
attached to the Centre Based dispensation, for
full-time employment” is a reference to the entry-level notch
for OSD salary
scale CB1-1, which at the relevant time of the dispute
was R 72,543. This is because here is simply no plausible basis for
identifying
the first notch of OSD salary grade CB1-2 as the
appropriate starting point with effect from the commencement of their
full-time
employment rather than the first notch of OSD salary grade
CB1-1.
[21]
The route by which the respondents seek to
rationalise the arbitrator’s finding to that effect by means of
translating them
from a putative pre-July 2009 salary level 5 to the
OSD salary level CB 1-2, appears to be an unduly convoluted one. I am
not persuaded
that it can provide a plausible explanation for the
arbitrator’s conclusion. It also seems anomalous that such a
group would
be placed on a scale for which considerably more
experience is stipulated as a requirement. Further, this reasoning
also would
also seem to entail that the second group benefited twice
from what was supposed to be a once-off translation process,
[22]
Moreover, in my view there is also no
reason to assume that the ring-fencing of the group in question was
intended to ensure that
at the end of their training they would be in
the same position as their predecessors who were in permanent
employment before 1
July 2009, rather than their successors who
started and completed their training after that date. Ring-fencing
can simply mean
that a group or entity is separated and treated
distinctly from other groups or entities: it does not automatically
have a protective
connotation in my view. In addition, the
considerations which informed the classification of the second-group
as ring-fenced seem
to have pre-dated the introduction of the OSD,
and it would be wrong in my view to infer that the term was
introduced to indicate
some kind of protected status which members of
that group would enjoy
vis-a-vis
those learners who only started and were permanently employed after 1
July 2009.
_______________________
R LAGRANGE, J
Judge of the Labour
Court of South Africa