Education Labour Relations Council (ELRC) Annual Report 2012

Committee: Basic Education

Chairperson: Ms H Malgas (ANC)

Date of Meeting: 11 Oct 2012

Summary

The Education Labour Relations Council (ELRC) presented its 2011/12 Annual Report, setting out its mandate and the legislation from which it derived its mandate and that it was bound to comply with. At the request of the Chairperson, it was clarified that the Chief Financial Officer was now also acting as Acting Secretary General, because of the resignation and move to another department of the former incumbent. In this period there were eleven reviews which, as a matter of principle, ELRC did not opposed. The figures for dispute referrals were compared and explained for the previous five years. There were 741 referrals, probably an indicator that employees were increasing prepared to assert their rights and trust in the ELRC process. About 179 (24%) of referrals were not in the ELRC’s jurisdiction and continuous engagement with stakeholders should bring that number down even more. The provincial spread was outlined, as well as the nature of the disputes, with the majority around promotion disputes, enforcement of the Basic Conditions of Employment Act (BCEA) and Interpretation or applications disputes. 15% of the disputes had involved learners as victims. 513 conciliation processes were conducted, and the number of arbitration matters had risen from the previous year. The number of disputes settled fell far short of the 70% target, at only 18%. The ELRC was trying to keep the referral of disputes below a 500 per year figure and was doing this by monitoring the finalisation of grievances, finalisation of appeals by the MECs, and the precautionary suspensions, by requesting quarterly information from provinces. The collective bargaining processes at national and provincial sphere, and the types of agreements, were detailed. Overall provincial achievement rate of five chambers was over 80%, and in Eastern Cape and KwaZulu Natal, which experienced problems, task teams had been convened and assistance was given in priority areas. The HR management statistics were outlined.

Members asked if challenges around duplication of issues by different bodies had been resolved, asked why the reviews were not, in principle opposed, and noted that Constitutional Court rulings might mean that the constitution of the ELRC would have to be amended. They questioned the statements and promises made three years previously about provision of laptops to teachers, but when the ELRC clarified that this did not fall within its remit, an update was given by the Department of Basic Education representative. Members also questioned the performance assessment agreements for principals and deputy principals, and matters in which children were victims, but were told that these too fell outside the jurisdiction of the ELRC. ELRC was asked to reassess the payment of markers. Members questioned if training of unions was happening, and wondered to what extent ELRC became involved in matters like unprotected strikes. The ELRC was asked whether it could say it had achieved value for money, and raised the irregular expenditure, which had been cited as a concern by the Auditor-General. Several of the questions did not appear to have been answered.


Minutes

Education Labour Relations Council (ELRC) Annual Report 2011/2012 briefing
TheChairperson asked that, at the outset, the Chief Financial Officer should clarify the position of the Chief Executive Officer of the Education Labour Relations Council (ELRC)

Mr Jeff Moshekga, Chief Financial Officer, Education Labour Relations council, noted that at the moment he was acting as Accounting Officer of the ELRC, as he was currently the Acting General Secretary of ELRC. He explained that the General Secretary had left the ELRC at the end of June 2012, but remained within the public service, having moved across to the Department of Public Works.

Mr Mokshekga briefly set out the Constitutional mandate of the ELRC, derived from sections 23, 28(2) and 29(1), and the legislative mandate, derived primarily from the Labour Relations Act and other legislation around employment of educators. He also set out the key legislation that directed the core business of the ELRC (see attached presentation for full details). Its mandate was also derived from the Service Delivery Agreement of the Minister of Basic Education, the Education Action Plan to 2014.

During the 2011/12 financial period, the total number of reviews had increased from three in the previous year, to eleven in this. As a matter of course, the ELRC did not oppose these applications

In relation to the performance report, he noted that it had focussed on the dispute referrals, by year. He sought to explain the figures. In 2007/08, the Public Service strike was the cause of the rise in referrals, up to 955. In the 2010/11 financial year, there were 531 referrals, and in the 2011/12 year there were 741. This increase was notwithstanding the fact that the employer-employee relations were relatively stable in the past year. However, it was probably an indicators that employees were increasingly asserting their rights and it was a demonstration of their increasing trust in the ELRC process.

In relation to the referrals, he then presented more details. About 179 (24%) of referrals were determined to be out of the jurisdiction of the ELRC, when initially screened. This was 8% less than the 2010-2011 financial years. Continuous engagement with dispute practitioners was aimed at reducing this number further. The out of jurisdiction disputes signified discontent that should be addressed at provincial level, through the Dispute Prevention task teams.

In relation to the provincial numbers, he noted that the Western Cape was the highest referring Province, with 176 referrals, followed by Kwa-Zulu Natal at 166, and these two provinces’ positions had alternated over the years. Mpumalanga was reported as the least referring province, alternating with the Northern Cape although their educator numbers compared favourably with Western Cape and others. Only the Free State experienced a drop in referrals in the past financial year, from 46 to 40 referrals, with all others showing increases.

The nature of disputes was outlined. The Promotion Disputes category was consistently the highest, across all financial years. Promotions, enforcement of the Basic Conditions of Employment Act (BCEA) and Interpretation or applications disputes, at 53% of matters, did not require a grievance procedure. About 29 (or 15%) of the 196 dismissals involved learners as victims. Interpretation and enforcement disputes were showing a steady rise and would warrant some attention from the Council.

In this financial year, 513 Conciliation processes were conducted, 9 more than the 508 cases determined to be in-jurisdiction. The Arbitration Process cases rose by 81, when compared to 685 in the past financial year.

The dispute outcomes were then set out. About 230 (18%) disputes were settled in the past financial year, but this fell far short of the 70% target by the Commission for Conciliation Mediation and Arbitration (CCMA). Of these cases, 144 of these were settled after both conciliation and arbitration, and 86 were withdrawn at both processes. 168 Arbitration awards were rendered

The ELRC was trying to minimise referral of disputes and keep it at a number lower than 500 per year. It was therefore now monitoring the finalisation of grievances, finalisation of appeals by the MECs, and the precautionary suspensions, by requesting quarterly information from provinces. This should enable the ELRC to make necessary interventions earlier. The submission by provinces of the statistics was still work in progress

Ms Cindy Foca, Senior Manager: Collective Bargaining Processes, ELRC, spoke on the Collective Bargaining in the national sphere. The ELRC’s performance with regard to collective bargaining continued to decline. 

She described the collective agreements that were concluded in this year, as the following:
- Collective Agreement 1 of 2012: Improvement on Remuneration of Markers in National Examinations
- Collective Agreement 2 of 2011: Amendment of Clause 9.3.1 of the ELRC Constitution as certified by the Registrar of Labour on 25 April 2007, and as ratified by Collective Agreement No 6 of 2007
- Collective Agreement 3 of 2011: Vote Weights for the Trade Unions that were parties to Council

On the provincial level, the overall performance of chambers, excluding Eastern Cape (EC) and Kwa-Zulu Natal was pleasing. The achievement rate of five chambers was over 80%; and one had achieved 73% and another 60%. In the Eastern Cape, there was facilitation around the implementation of the Memorandum of Agreement between the Premier of the EC, MEC for Education, MEC for Health and the Unions with regards to “post provisioning and temporary teachers”. This resulted in two task teams, convened under the auspices of the ELRC and facilitated by independent facilitators, that dealt with the finalisation of the 2012 Post Provisioning and monitoring of the reinstatement of temporary teachers. Emanating from the work of the Task Teams, the Collective Agreement No.1 of 2012, on Appointment of Temporary Educators was concluded in June. In the first quarter of the 2012/13 financial year, there was, for the first time in three years, an improved level of performance in the Eastern Cape Chamber.

In the KwaZulu Natal Chamber, the predetermined objectives were replaced by a statement of the priority issues. Much time was devoted to the plight of under qualified educators and monitoring the implementation of Post Provisioning, to ensure smooth functioning of schools and displaced educators.

In other provinces, the following provincial agreements were agreed upon:
- Collective Agreement 1 of 2011 of Mpumalanga Chamber: Permanent Appointment of Serving Temporary Educators Occupying Vacant Substantive Posts
- Collective Agreement 1 of 2012 of Limpopo Chamber: Implementation of the 2012 schools posts established.

Ms Foca then moved on to the Executive Service Human Resource Management statistics. In the 2011/12 year, six new appointments were made. The ELRC spent a total of R185 078 on skills development workshops and educational studies, for a total of 17 employees

Mr Moshekga concluded by conveying, on behalf of the executive committee and audit committee members, appreciation to the Committee for assisting the ELRC fulfil its responsibility of oversight over the quality and integrity of the accounting, auditing and reporting practices of the ELRC. He also noted his appreciation for ensuring that ELRC did not waver from its role to focus on qualitative aspects of financial and performance reporting.

Discussion
The Chairperson thanked ELRC for the report, which gave a deeper understanding of the ELRC to the Portfolio Committee. She noted that the Department of Basic Education (DBE) representatives had nothing to add.
 
Mr Z Makhubele (ANC) wanted to know whether the issue of three bodies dealing with the same disputes had been resolved: namely the South African Council of Educators, DBE and ELRC.
He noted that Ms Foca had mentioned that at times matters were resolved in the Chambers, but then came back again, and he asked for an explanation on this process.

Mr Makhubele also asked why the ELRC did not oppose litigation unless its conduct had been questioned, and asked if that was a matter of principle, or had to do with final authorities.

Mr Makhubele referred to the Annual Report, at page 29, which dealt with the challenge to the ELRC’s constitution. He also noted that the Reddy judgement handed down in 2003 said that the ELRC did not have jurisdiction to hear the matters relating to the powers of the School Governing Body (SGB) in making recommendations to the employer, until the employer acted on such a recommendation. He submitted that the constitution of ELRC might need to be amended, and asked for further clarity on that.

Mr A Mpontshane (IFP) said that, three years ago, it was publicly announced that teachers were going to get laptops and commented that this appeared to have been a premature announcement. He wondered if it was ELRC or DBE who were not ready to acquire those laptops and asked why false hopes were created.

Mr Mpontshane raised the Performance Assessment Agreement for the principals and deputy principals, noting that this too was over three years old. Good principals resulted in good quality education. He felt that someone – and asked who – was holding the process to ransom.

Mr Mpontshane noted the figures for appointments and promotions complaints, in KwaZulu Natal. He noted that there were two unions – SADTU and NAPTOSA – and he enquired from which the complaints had emanated. One union in one of the provinces had complained bitterly that promotions favoured one group, and he asked that ELRC explain the politics.

Ms F Mushwana (ANC) appreciated the well formulated report. Her concern was that whenever there were promotions, there were also invariably complaints. She enquired how the ELRC would check the fairness.

Ms Mushwana asked that ELRC reassess the issue of payment of educators marking Grade 12, and other educators who were marking but did not get paid for that. She thought all educators should receive the same payment, unless the ELRC was suggesting that only educators seated in some boardroom must be paid and not the others. Educators from other grades marked, and should be paid.

Ms Mushwana also raised concerns about the laptops and agreed that someone seemed to be sabotaging the initiative. At the end of the day, the President had announced that it would be done, and at the end of his term he would be criticised if he did not hold to his promises.

Ms A Lovemore (DA), said her colleagues had eloquently raised the teacher laptop initiative, and agreed with their comments.

Ms Lovemore also noted that contracts of principals and deputy principals had been in place since 2008. She asked how the Minister pronounced on that before the ELRC concluded its process. She asked as to what had happened in the past four years, and whether nothing was done on the proposed initiative. She also asked on what research the performance contracts were based.

Ms Lovemore then turned to training and said that one of the prevailing problems was that the unions were not aware of picketing rules. Picketing was not allowed outside school premises, but was allowed outside the Provincial Education Department, as the latter, not the school, was the employer.

Ms Lovemore enquired to what extent the ELRC was involved with the unions in matters like the unprotected strikes, such as the go slow in the Eastern Cape that had continued for a long time, and said that it was necessary to acknowledge current developments in South Africa, as evidenced by Marikana, where unions were ignored.

Ms Lovemore questioned the Sexual Offenders Register, noting the number of child victims or witnesses. ELRC was the authority that should file all issues of misconduct. She noted the indication of “not archived” and “procedure still to be clarified” and wondered who was taking responsibility for filing the findings. She noted that in some cases the name of the employee might have to be placed on the Sexual Offenders Register, but she was not sure whether SACE or ELRC would deal with that. in her understanding SACE deals with misconduct not the ELRC, and asked if they could explain that.

Mr D Smiles (DA) raised the question of whether ELRC had achieved value for money, and what precise benefits accrued to the end user. He wondered if the contribution of the ELRC spending had achieved the national priority of Quality Basic Education.

Mr Smiles accepted that risk management was a challenge, and reminded ELRC of its commitment to work on this. He then asked whether internal auditing was being done, or if this function was outsourced. If the latter, then he wondered whether there was consideration to doing this internally.

Mr Smiles wondered if there was any risk that employees were not receiving what they should, from a Constitutional perspective, from the trade unions.

Ms C Dudley (ACDP) noted that the irregular expenditure was attributed to lack of skill, lack of knowledge, lack of dedicated personnel to deal with supply chain issues. ELRC had also recorded fruitless and wasteful expenditure. She wanted to know what was being done to address both.

The Chairperson said that these questions were very important. The AG had made it clear that the amount of money received was substantial.

Mr Moshekga noted that the ELRC did not receive an allocation. He noted that international auditing used to be a service that ELRC shared with DBE. However, in view of the loss of capacity at the DBE, this function was now being outsourced also by ELRC. ELRC was aware of the need to hire its own internal auditors, had had a post approved, and would be filling it in the next financial year.

Mr Moshekga said that he could not speak to the grievances as that was at the level of the employers. He confirmed that the SACE would deal with the matters raised by Ms Lovemore, where a child was witness or victim. The issue of performance contracts for principals and deputy principals similarly fell outside the jurisdiction of the ELRC, so he could not give an indication of the research that informed it.

He said that the Marikana type of issue was categorised as a risk. It would be dealt with in part by training of the unions, although this had not been possible because of the funding constraints.

 The Dispute Resolution involving the child as a victim or a witness and as to where they were now.
Mr Jeff Moshekga said it was a professional matter and SACE dealt with that.

The Marikana issue and its categorisation as risk, together with the training of the unions; training was not possible because of funding constraints.

Ms S Geyer, Department of Basic Education representative, responded to questions on the laptops by saying that the initiative was at an advanced stage, but it was still in an internal process. She could not provide a timeline, other than to say that this should be finalised within the current financial year. A tender could be advertised from the beginning of 2013.

The meeting was adjourned.