WESTERN CAPE EDUCATION DEPARTMENT DIRECTORATE LABOUR RELATIONS PROGRAMME

WESTERN CAPE EDUCATION DEPARTMENT DIRECTORATE: LABOUR RELATIONS

PROGRAMME

DOMESTIC ISSUES § § § STARTING AND FINISHING TIMES EACH DELEGATE - FILE CELLULAR PHONES - OFF NO SMOKING ASK AS MANY GENERAL QUESTIONS AS POSSIBLE WITHIN THE TIMEFRAMES

TRAINING OBJECTIVES DELEGATES TO BE : § FAMILIARISED WITH AND UNDERSTAND THE LATEST AMENDMENTS TO APPLICABLE LABOUR LEGISLATION WITHIN EDUCATION § FAMILIARISED WITH AND UNDERSTAND THE APPLICATION OF RESOLUTIONS SIGNED IN 2002/2003

AMENDMENTS TO THE LRA THE AMENDMENTS SEEK TO ADDRESS VARIOUS INEFFICIENCIES OF THE LRA AND TO IMPROVE SPESIFIC AREAS OF THE ACT ONLY THE AMMENDMENTS APPLICABLE TO EDUCATORS WILL BE HIGHLIGHTED

AMENDMENTS TO THE LRA THE 2002 AMENDMENTS INTER ALIA PROVIDES FOR THE FOLLOWING: § THE RIGHT TO STRIKE ON RETRECHMENTS AND FACILITATION OF DISPUTES AROUND RETRECHMENTS § INCREASED POWERS TO BARGAINING COUNCILS AND ITS OFFICIALS § BETTER PROTECTION TO VULNERABLE WORKERS § ONE STOP CONCILIATION AND ARBITRATION PROCESSES § ONE STOP FINAL AND BINDING DISCIPLINARY ENQUIRIES( PRE-DISMISSAL ARBITRATION)

LRA ( CONT) § UNFAIR DISMISSALS AND UNFAIR LABOUR PRACTICES (CHAPTER 8 OF LRA) (Page 26) - Schedule 7 has been incorporated into the act (Section 186. 2. a – d) (Page 28) - Pre-dismissal arbitration (new Section 188. a) (Page 28) * Pre-dismissal arbitration in cases of misconduct or incapacity, by agreement between the parties, paid for by the employer - Dismissal on Operational requirements (Section 189) (Page 30) - Unfair dismissal disputes and ULP’s (Section 191) (Page 38) - Limits on compensation (Section 194) (Page 40)

LRA ( CONT) § DEFINITION OF EMPLOYEE (Section 213 DEFINITION) (a) any person excluding an independent contractor, who works for another person or for the State and who receives, or is entitle to receive, any remuneration: and (b) any person who is in any manner assist in carrying on or conducting the business of an employer (Section 200. a) (PAGE 46) * A person who works or renders a service to any other person is presumed, until the contrary is proven, to be an employee, regardless of the form of contract of employment, if specified factors are present

LRA (CONT) § PROBATIONARY APPOINTMENTS (New Section 8 of Schedule 8) (PAGE 54) * Proof of substantive fairness for performance-related dismissals during probation will be less difficult for employers § Enforcement of collective agreements by Bargaining Councils (Section 33 A) (PAGE 6) A Bargaining council may : l Monitor l And enforce compliance with its collective agreements l May authorise a designated agent to issue an compliance order l Unresolved Disputes may be referred to arbitration

LRA ( CONT. ) § Arbitration awards will be deemed to be orders of the Labour Court excluding payment of an amount of money (Section 143) ( PAGE 24)

EDUCATION LAWS AMENDMENT ACT, 2002 § The following acts were amended l l l SASA - South African Schools Act EEA - Employment of Educators Act FETA - Further Education and Training Act ABETA - Adult Basic Education and Training Act GFETQAA - General and Further Education and Training Qualification Authority Act § We will only highlight the significant amendments to SASA and the EEA regarding educators

SOUTH AFRICAN SCHOOLS ACT § SECTION 5(4) (Page 4) l l § SECTION 8 (Page 4) l l § A LEARNER MUST BE ACCOMPANIED BY HIS/HER PARENT OR PERSON DESIGNATED BY THE PARENT APPOINTMENT OF AN INTERMEDIARY AT DISCIPLINARY HEARINGS SECTION 10(A) (Page 6) l § ADMISSION AGE OF LEARNERS WITH EFFECT AS FROM 1 JANUARY 2004 PROHIBITATION OF INITIATION PRACTICES SECTION 18 (Page 8) l CODE OF CONDUCT OF GOVERNING BODIES

EMPLOYMENT OF EDUCATORS ACT § SECTION 6(A) (Page 10) l APPOINTMENT OF NEW EMPLOYEES OR APPLICANTS WITH A BREAK IN SERVICE WITHOUT THE RECOMMENDATION OF THE SGB § ITEM 7 OF SCHEDULE 2 (Page 12) l l l DISCIPLINARY HEARINGS CAN BE RECORDED ELECTONICALLY TRANSCRIPT TO BE MADE AVAILABLE ON REQUEST PAYMENT IS THE RESPONSIBILITY OF THE ACCUSED § SECTION 10(A) (Page 12) l PRESIDING OFFICER MAY APPOINT AN INTERMEDIARY TO ASSIST ANY WITNESS UNDER THE AGE OF 18 YEARS

BASIC CONDITIONS OF EMPLOYMENT ACT § THE 2002 AMENDMENTS PROVIDES INTER ALIA FOR THE FOLLOWING: § Substitute certain definitions § Regulate the extension of overtime by collective agreement § Regulate the payment of contributions to benefit funds Only the significant amendments applicable to education will be highlighted

BASIC CONDITIONS OF EMPLOYMENT ACT (Continue) • OVERTIME (Section 10) (Page 4) • Three hour daily limit has been deleted and replaced; basically persons must agree not to work more than 12 hours on any given day • A collective agreement may also be concluded to extend the 10 hour weekly overtime limit to 15 hours l Resolution 6 of 2002 is applicable to educators regarding overtime and other basic employment conditions

BASIC CONDITIONS OF EMPLOYMENT ACT (Continue) • PAYMENT OF CONTRIBUTIONS TO BENEFIT FUNDS (Section 34. a) (Page 4) • • Employers are obligated to pay over deductions from salaries iro benefit funds within 7 days of the deduction The employers deduction to be made within 7 days of the end of the period for which the contribution is made

BASIC CONDITIONS OF EMPLOYMENT ACT (Continue) • NOTICE PERIODS (Section 37) (Page 6) up to six months - 1 weeks notice six months to one year - 2 weeks “ one year or more - 4 weeks “ farm and domestic workers employed more than six months - 4 weeks

TIME-OFF A COMMON UNDERSTANDING ON THE INTERPRETATION AND IMPLEMENTATION OF THE TIME OFF PROVISIONS

BACKGROUND § Parties to the PELRC identified a need to develop a common understanding in respect of time off provisions as stipulated in the PAM. § This could be ascribed to the inconsistent interpretation and application of the time off provisions in the PAM. § After unpacking the legislation, a common understanding was agreed to by all parties.

INTRODUCTION § Parties hereby confirm that the following principles underscore this common understanding, as concluded in the ELRC(Western Cape) : § The acknowledgement of labour rights entrenched in the SA Constitution, LRA and ELRC Constitution which seeks to promote labour peace.

INTRODUCTION(cont. ) § That an educator’s role in the education process is dynamic and developmental, and therefore requires the active participation of educators at school, provincial and national level. § That the amount of time off and the frequency thereof should at all times be reasonable and fair.

§ That arrangements for time off should consider : Ø the need for the process of teaching and learning to be uninterrupted; Ø the importance for high productivity levels; Ø efficiency and effectiveness in services rendered to the general public; Ø the need for order in the education system; and Ø the constitutional rights of the child.

NATURE OF REQUEST § Chapter G of the PAM makes provision for time off for the following activities : Ø Collective Bargaining Purposes Ø Organisational Duties Ø Organisational Activities

Time off for Collective Bargaining Purposes Ø Clause 3. 1 of Chapter G in the PAM provides for an entitlement of 1 additional school day for preparation, per meeting/event. Ø i. e. PSCBC, ELRC, PELRC (e. g. Council, Chamber meetings, task team meetings)

Time off for Organisational Duties Ø Clause 3. 2 of Chapter G in the PAM provides for an entitlement of 12 school days per annum. Ø This is for representing members at : Ø Disciplinary /dispute hearings and retrenchment or redundancy proceedings Ø Attending labour relations training by the union for elected representatives Ø Attending, participating in and organising workplace or teacher forums and conferences

Time off for Organisational Activities Ø Clause 3. 3 of Chapter G in the PAM provides for an entitlement of 8 hours per annum. Ø i. e. Attending meetings at the workplace(school or office) Ø Meetings arranged by the FTSS at the workplace or by the union away from the workplace Ø Elections i. e. AGM at branch, regional, provincial or national level. Ø Voting i. r. o. a lawful strike/industrial action

WHO GOES? § In other words, who is the representative in order of preference : Ø The nature of the activity provides guidance in respect of the most desired person who should attend. Ø In most instances, it is preferred practice and a mutual understanding between parties to the ELRC that the FTSS should be the first option.

WHO GOES? (cont. ) Ø However, there are instances especially in respect of : Ø Ø Organisational duties, and Organisational activities where provision is made for : Ø Elected office bearers/officials Ø Members to attend these proceedings.

TO WHOM? § Office to which request/notice is sent : Ø Principal Ø Line Manager Ø Supervisor Ø However, in the case of FTSS : n/a

BY WHOM? § Who requests time off or notifies? § the union via the member who informs the principal/line manager/supervisor § Duly elected employee representative § FTSS

DOCUMENTATION § What to submit or is required when requesting or notifying? § The notice of the meeting/training/forum/conference; and § The unions written request.

NOTIFICATION PERIOD § Refers to the agreed upon period for request or notice. § This varies in respect of the nature of request. § Could be attributed to arrangements to be made in terms of submissions i. e. in order to obtain the necessary approval i. r. o. various activities.

APPLICABLE POLICY § The purpose is to ensure that departmental policy/procedure/protocol is adhered to. § These are measures that could be utilised to verify whether the limitation in respect of the respective activities are adhered to. § Thus serves as a monitoring mechanism.

FILLING OF POSTS § STATEMENT § NATIONAL STATISTICS 2002/03 l DISPUTES (Total) • 1 117 referred to the Council • 788 successfully dealt with through conciliation or arbitration • 162 cases are still being processed • The remaining cases were withdrawn

NATIONAL DISPUTES STATISTICS 2002/03 § January 2002 - March 2003 = 1 117

VERIFICATION PROCESS § § § COURT CASE 90 DAYS FOR GRIEVANCES FILLING OF POSTS ASAP MECHANISM TO PREVENT DISPUTES VERIFY PROCESS TO SATISFY DEPT TO FILL POSTS ASAP § APPROVAL OF SG

ELRC RESOLUTIONS OF 2002 1. VOTE WEIGHTS FOR TRADE UNIONS TO THE ELRC National Provincial - NAPTOSA - 27. 57% - 34. 76% - SADTU - 60. 90% - 51. 74% - SAOU - 11. 53% - 13. 50% 2. APPOINTMENT OF CONCILIATORS / ARBITRATORS 3. PERFORMANCE MANAGEMENT & DEVELOPMENT SCHEME FOR OFFICE BASED EDUCATORS [PMDS] - provide a basis for decisions on salary progression, rewards

4. PERMANENT APPOINTMENT OF UNQUALIFIED EDUCATORS - REVQ 10 with 10 years satisfactory service at 31/12/2001 effective once system of evaluation has been agreed upon 5. RECOGNITION FOR IMPROVEMENT IN REQV - An educator who qualifies for a salary adjustment must submit proof within 12 months of obtaining it in order to receive the adjustment from the date it was approved; Failure to do so will result in the adjustment being effective on date of submission -

6. IMPLEMENTATION OF THE BCEA IN EDUCATION - Agreed that the provisions of the PAM apply to educators Payment and authorization of overtime shall be in terms of the PAM Sunday work will paid in terms of the PAM Educators at schools will have one or more breaks iro meals, the total of which will not be less than 30 minutes No pay for night work iro duties after 6 pm at an institution

7. APPOINTMENT OF FULL-TIME SHOP STEWARDS 8. PAYMENT OF ACTING ALLOWANCE FOR AN EDUCATOR ACTING IN A HIGHER POST WHERE THE PERMANENT INCUMBENT IS ABSENT - - w. e. f 1 April 2003 circumstances - maternity leave - sick leave - study leave - suspension - secondment appointment must be longer than 12 weeks but less than 12 months

RESOLUTIONS : 2003 § 1. Evaluation procedures and performance standards for institution based educators (The purpose of this agreement is to identify the evaluation procedures, processes and performance standards for institution based educators) § 2. Transfer of serving educators in terms of operational requirements § (The purpose of this agreement is to amend measures regarding the transfer of serving educators in terms of operational requirements)

RESOLUTIONS : 2003 § 3. Protocol and instrument for use when observing educators in practice for the purpose of whole school evaluation(WSE) and development appraisal system( DAS) (The purpose of this agreement is to provide a protocol and instrument for use when observing educators of WSE and DAS) § 4. Post and salary structures for educators (The purpose of this agreement is to amend the PAM in order to reflect the new post and salary grading system for educators) § 5. Amendment to Measures dealing with the Recognition of Experience of Educators gained outside Public Education prior 1 July 1996 (The purpose of this agreement is to amend the PAM in order to give the same recognition for experience gained outside public schools to educators who are appointed for the first time after July 2003 as for educators who were in service prior to this date)

EVALUATION & CLOSURE THANK YOU FOR YOUR ATTENDANCE