Education Labour Relations Council Strategic and Annual Performance Plans 2013

Meeting report

Chairperson’s opening remarks
The Chairperson outlined the process to be followed in the deliberations, and said that the Committee had given some preliminary consideration, at a previous meeting, to the Strategic and Annual Performance Plans of the Education Labour Relations Council (ELRC), and had picked up certain issues that it could not agree with. The Secretary General of the Council, Ms Cindy Foca, and the Chief Financial Officer were alerted to the queries, and it was agreed that another meeting would be arranged, at which the ELRC Board would deal with the matters.

Presentation of Education Labour Relations Council: 2013-16 Strategic Plan and Annual Performance Plan
Ms Dorcus Sekabate, Chairperson, Education Labour Relations Council, remarked that she hoped the report she would now present would be well received. She explained that the ELRC was a bargaining council, and might not meet the expectation of some Members. The presentation was all dependent on stakeholders of the ERLC having met their targets and making available the information on them. In this regard, she noted that the Council comprised of representatives from Department of Basic Education (DBE) and labour organisations, including teacher unions like the South African Democratic Teachers Union (SADTU) and the Amalgamated Teachers Unions operating in basic education.

Ms Cindy Foca, Secretary General, ELRC, said the Council welcomed the advice provided by the Committee Secretariat on where ELRC needed to improve on the initial report given. Several items had since been revisited in an attempt to address the specific concerns identified.

In the main, the first concern for the Committee had been the role the Council played in intervening in areas where dispute was likely. These would be issues that were likely to bring about an impasse between labour and the employer. A specific reference to the situational analysis had been made, and where a potential dispute loomed, senior facilitators were appointed.

She cited the particularly difficult situation in the Eastern Cape, involving disputes between teachers and the Department of Basic Education (DBE). A facilitator was provided to the province, but the process was impacted on by the provincial department being placed under administration. Currently there were plans in place to implement the agreement regarding appointment of temporary educators in that province.

Another concern was that the ELRC had not commented specifically upon matters relating to Early Childhood Development (ECD). The ELRC had revisited the DBE’s annual performance plan, and had discovered that reference was made to providing access to early childhood development centres. The role the Council could play there would be to conduct preliminary research on conditions of service. ELRC acknowledged that early childhood development was a shared responsibility between the DBE and the Department of Social Development (DSD). For the ELRC to play a meaningful role, there had to be policies, with clear norms and standards, in the sector. The Council would be convening a workshop next week on the National Development Plan (NDP), through the office of the National Planning Commission (NPC).

Another item raised was how ELRC dealt with the backlogs. Some of these matters were not included in detail in the APP, because they were managed in terms of the internal management plan. There was currently a backlog of 184 cases from the previous financial year. Backlogs were complicated, especially when the applicants relied on lawyers who had to honour their own diary commitments before honouring the needs of ELRC to resolve matters speedily. The limitations were mostly to do with the availability of the legal advisers for the applicants. Other challenges were found in the cases that involved children as victims.

She clarified that the ELRC, as a bargaining council, dealt with issues of unfair dismissals. The ELRC only had to ensure that if an educator was dismissed, fair and correct procedures had been followed. That process involved conducting hearings all over again. This was not an ideal situation, as some parents did not take kindly to their children being subjected twice to such processes, especially if they involved sexually related matters. The process was also costly and time consuming, as the ELRC did not have those facilities found in courts of laws. Parents also needed assurance that a learner would not come into contact with the alleged perpetrator. The whole process took time, but ELRC was putting measures in place. It had engaged with the Department of Justice to make suitable venues available, and was engaging also with non-governmental organisations (NGOs) concerned with protection of the rights of children.

Another issue raised by the Committee related to the findings of the Auditor-General (AG) around wasteful and irregular expenditure, and non-compliance with National Treasury (NT) regulations. The report also indicated the Council had to establish a supply chain management unit, located within the Chief Financial Officer’s office. This was something the Council agreed that must be given priority, and it had since been established.

Another governance challenge related to the high staff turnover rate. The ELRC was a small organisation and therefore tended to attract the younger generation who were always on the look out for greener pastures. The Council had put in place a retention strategy. The total number of vacancies was brought about by resignations, and vacancies that existed in the approved organogram.

Ms Foca said the ELRC had been asked why the Strategic Plan said nothing about performance management instrument for educators. The Council was of the view that the issue would be captured in the approved management plan. The concern had, however, now been addressed, and in the revised APP, the ELRC had taken the deadlines as adopted in the management plan, and factored this in, with specific targets.

Collective bargaining was divided further into specific areas. Inability to implement agreements had been addressed, and the ELRC believed it was important to monitor implementation. It was important to provide training and advocacy. Part of the challenge had been that provinces interpreted collective agreements differently. This resulted in more disputes being presented to the Council.

It was important to revisit the role of the ELRC on the dispute involving the school governing bodies (SGBs), and those disputes involving children as victims. The Constitution provided for educators to refer disputes on promotions and appointments to ELRC, where SGBs had either failed to make appointments or had appointed differently from expectations.

Currently there were discussions about a Commission to be established by the President to review public servants’ salary packages, as proclaimed in the State of the Nation Address (SONA) and the National Development Plan (NDP). It would be premature to comment on that as the terms of reference of such a commission were not yet known. Pending the commission’s findings and the issues as expressed in the NDP, the ELRC would then revise its APP to factor in such information.

Ms Foca concluded that the ELRC had taken into consideration the current proposals on the amendment to the Labour Relations Act, but noted that the role of the ELRC was limited and that it could not do anything until the amendments had been passed.

Discussion
Ms A Lovemore (DA) commented that according to the current legislative situation, the ELRC could not be proactive, as it had set out in its objectives, but that instead the ELRC was bound to adopt a reactive stance, reacting to a situation that had developed. She sought clarity on whether the Council in fact waited for people to raise issues. There was disagreement about the collective agreement from both the employers and the employees. The collective agreement was brokered through the bargaining agreement in which the Council had a direct involvement. She asked whether the ELRC could not intervene when things like the SADTU strike last week, had happened.

Ms Foca replied that the main issue was the role of Council as it related to disputes on collective agreements on tariffs signed in 2011. The Council wanted to place on record that the agreement was concluded in April 2011. There were engagements by the former Secretary General of the ELRC, with both labour unions and the Department. The  dispute was referred for the first time in 2012, but only when the parties had failed to resolve their issues.

She noted that in terms of the ELRC’s constitution, it was necessary to appoint an independent presiding official. This was done, but there were engagements long before the dispute was registered with the Council. One of the stakeholders – in this case labour unions – had approached the court. This then created a rather difficult situation for the Council. Everyone had to respect the laws of the country, and once the matter was engaged on through a court of law, no one could run parallel processes. However she reiterated that the Council had attempted to resolve the dispute long before it landed formally on its desk.

Ms Lovemore commented the report presented was significantly better than the one presented previously, which did not set out any targets. She said it was, however, still of some concern that there were different targets quoted for the same things. Another concern with respect to numbers was that the annual targets were inconsistent with quarterly targets. In addition, the post provisioning norms were another matter of concern, and she asked for an explanation of the ELRC’s involvement in these. The ELRC would not be involved in the structuring of the post provisioning norms, as that would surely go to curricular needs that should come from DBE.

Ms Foca replied that the reason why the quarterly targets did not tally with annual targets, was because the ELRC based the issue of collective bargaining on the baseline. This involved looking at issues that were on the agenda of Council the previous year. By the time of putting together the APP, there had not been any issue that was concluded. The baseline would still inform the agenda of the Council in the future and Council had envisaged concluding at least eight of the issues that were mentioned on the baseline by the end of the financial year.

This, however, was different to saying eight collective agreements issues should be concluded. Not everything on the Council agenda would be finalised in one year. She cited the issue of revising the Personnel Administrative Measures (PAM). This was more like a human resource policy for educators and no agreement could ever be concluded on this, although it appeared on the agenda for the Council.

Ms Lovemore commented that figures, throughout the presentation, were very different and did not tally.

Ms Lovemore sought clarity on the post provisioning norms. She said her understanding of the response was that the Council’s involvement was not on policy, but on consultation on policy. The date by which ELRC hoped to have concluded this was June 2013. She asked if the policy had been finalised by DBE, if it was hoped that it would be finalised in June, and asked if the ELRC had a draft document.

Ms Foca replied that the figures would be corrected at the end of the session. There was a document, and a workshop was scheduled for 09 May, where the document would be presented to the Council. The month of June was fixed upon as the target, on the basis that by then the document would have been presented to the Council.

Mr C Moni (ANC) asked if the agreements facilitated by the Council had any peace obligation.

Ms Foca commented she was not aware of any clause that provided for a peace obligation, except to say where there was a dispute, such a matter was provided for, in terms of the ELRC constitution.

Mr K Dikobo (Azapo) said the Committee appreciated the presentation, and hoped the conditions of service for ECD practitioners would materialise. It was true that if there were no rules, there would not be violations. However, this was not to say that in the absence of standard norms, the practitioners could be treated anyhow with nobody able to levy accusations of unfairness as nothing stated what was fair. This had been happening, and he commented that some people had been forced to tolerate terrible conditions.

Ms Foca replied that ideally there was a bigger role the Council could play, and that was to ensure that there were better conditions for the sector. The limitation was, however, the budget, as the Council was bound to accept what the Minister offered for the sector to improve its conditions of service. When the Council mentioned the preliminary research, it referred to the broader conditions of service. There was currently no role the Council could play, because there was no clear policy indicating what the state intended for the sector. However, she did point out that National Treasury allowed the ELRC to revise the Annual Performance Plan (APP) at least once a year; and said that if a policy was proposed, whatever changes this would necessitate on the APP would then be conveyed to the Committee.

Mr Dikobo commented that there were several things missing from the targets – such as the Occupation Specific Dispensation (OSD). He asked if the ELRC had given up on that issue. He also sought clarity on the issue of Recognition of Prior Learning (RPL). The collective agreement changed the minimum requirement and indicated there would be an RPL for those who failed to achieve through the normal schooling. There had been issues raised about a National Diploma in Education, and the role of Council in establishing labour peace. Collective bargaining went hand in hand with labour peace for if there were strikes, that meant there was no labour peace.

The Chairperson asked about the brokering of peace. The Committee was aware there were many systemic problems within DBE and this resulted in a lot of instability within the basic education sector.

Ms Foca said the RPL matter was among the issues to be discussed by the Council. This was regulated by other policies that were not necessarily subject to Council’s agreement. It was, however, important for the ELRC to put systems in place to address the issue of RPL in educators. But this would need to be guided by a policy that related to the South African Qualifications Authority (SAQA), and this was something that had to be addressed in the research.

Ms Foca also commented on the other matters that Members had mentioned. The Council was fully aware of these matters and how they were to be accommodated in the law. She reiterated again that the ELRC’s role was limited. Panellists always commented on issues involving children as victims and said that the complaint should be filed with the South African Council for Educators (SACE). The ELRC could not pay a role, and its involvement was subject to other institutions’ roles. This year, the Council had filed three awards with SACE.

Mr Dikobo also sought clarity on how far the training of practitioners was going, and whether there were educators being trained to become commissioners. If knowledgeable people led these institutions, the chances of undermining the law were minimal. Most educators understood the law. He said he wanted a breakdown of how many educators were included in the number of commissioners.

Ms Foca replied that the Council functioned with the law. Where there were deadlocks, the ELRC implemented its constitution, when appointing independent facilitators. She said educators and departmental officials were accommodated in the training as facilitators. In this financial year, the service providers who would be offering the training had been briefed to focus on “training the trainer”.

Mr D Smiles (DA) sought clarity on the backlogs, and asked how the ELRC was hoping to address the issue, having identified the involvement of legal representatives as one of the main contributing factors to the backlogs. He asked if the Council had thought about approaching law organisations to alert them to the challenge.

Ms Foca replied that the Council had tried to engage with the lawyers, although it had not gone so far as to seek legal opinion on the point. The ELRC’s role was limited, and therefore the Council could not dictate what should happen, in terms of how the lawyers practised their profession. The Council always indicated to them that its intention was to resolve many disputes as possible within a limited timeframe.

Mr Dikobo commented that the ELRC also needed to shoulder some blame for the delays. The Council appointed chairpersons and the presiding officers, and these officials could refuse the granting of extensions or postponements on cases. The Council could not fold its arms and claim helplessness in the matter. It should know which presiding officers delayed or condoned delays in cases, and yet they were given more. The ELRC should take responsibility for the long postponements of the cases, through their chairpersons. He added that in the meantime the alleged offenders were suspended on full pay, getting paid for services they did not render.

The Chairperson concurred with the Members and commented that the ELRC in fact had a lot of power.

Ms A Mashishi (ANC) wanted to know how many educators’ names had been entered on the Register of Sexual Offenders. She asked what procedure was followed to enter the names of educators on the Register.

Mr S Makhubele (ANC) sought clarity on the target of 90% debt collection on page 47; and the 100% target quarterly. He also sought clarity on the incentive for educators as stated in the presentation, saying that this could refer to a number of different things, but he wanted some specifics.

Ms Foca replied the incentives simply referred to cash incentives for those teachers in rural areas.

Mr Jeff Moshakga, Chief Financial Officer, ELRC, replied that in the nature of the business of the ELRC, it did not incur any debt. Any reference to “debts” related to recovery of wasteful and fruitless expenditure or to recovery of amounts following a costs order. These were things ELRC would have noted as “debt” but they were invariably difficult to recover over a short period of time, even within a financial year, because of the parties involved or ability of staff members to repay. This was the reason the Council did not give a target of 100%, but said 90% of that debt would be recovered in that financial year.

Ms F Mushwana (ANC) commented that she did not understand why the Council still had to rely on provincial chambers to monitor. She said it was important to find a way of ascertaining that monitoring had indeed taken place.

Ms Foca replied that this matter was clarified on page 25 of the presentation. In October 2011, the issue with performance management instrument and educator contracts was clarified. Currently the discussions were focussed on revising the performance management instrument.

Ms Mushwana commented that the notion of temporary educators needed to be done away with. Temporary educators should be used only when female teachers were on maternity leave, otherwise they would continue to be an unending challenge to the system.

The Chairperson sought clarification on the issue of laptops, and who was suppose to distribute them. Nothing was said about this item on the presentation.

Ms Foca replied that the teacher laptop initiative (TLI), as a project, ceased to exist since the end of 2011/12 financial year. After the challenges that the ELRC indicated in terms of the implementing the TLI, the Department went back to look at alternative ways of funding the process. She said she would rather not speak on behalf of DBE. She could only say that TLI was no longer on the agenda of Council.

DBE comments
Ms Simone Geyer, Chief Director: Human Resources, Department of Basic Education, commented that the matter had two sides, but there was no merit in debating the two sides at the meeting, and it had been aired widely in the public arena. The Department had avoided commenting publicly on the matter, and it was ideal if it was left as such.

Mr Lovemore interjected to say that the DBE was misleading the Committee on the matter. Panyaza Lesufi, Spokesman for the Minister of Basic Education, was on record saying a whole lot of things about why the collective agreements were not acceptable. DBE had certainly been in the public domain, with various explanations of why there were disputes and why the collective agreements were withdrawn. She said she took exception to Ms Geyer now saying there was no merit in informing Members as they had every right to interrogate the issue.

Mr Dikobo sought clarity on the nature of the dispute.

Mr Makhubele said the meeting was a formal engagement, and Members had awaited a response from the Department, which was now being given. It was not correct for Members to base their judgment on what some officials of the Department might have said to the media. Members should accept what was formally presented to the Committee in this venue, and if there was a need to take issue with the Department, on the basis of a presentation, the Committee could then look at how that would be dealt with. He requested the meeting to focus on what was being said here. If, at a certain point, the Committee wanted to find out why Mr Lesufi had said certain things, the Committee could then seek clarity on that from the appropriate sources.

The Chairperson said the whole reason why this Committee engaged separately with the ELRC was precisely to avoid controversy.

Mr Dikobo interjected to point out that since the ELRC was comprised equally of representatives from unions and the Department, they could not be separated.

The Chairperson replied they were not separated, but it was important to hear from the employer, and then the employee organisations separately. The matter was in court. On a previous occasion it was noted that the matter was still sub judice, and lawyers had asked that queries be referred through them. She was the accountable person who would have to explain if she allowed the Committee to discuss a matter while the court process was unfolding. She warned that Members should not speak to things they read in the media, but focus on what they were informed of in a formal meeting.

Ms Sekabate commented that she would not raise matters that could lead to further questions. She thanked the Committee for the issues raised and said the Council had picked up issues that needed consideration in the management plan. This would assist when the Council visited Parliament in October again.

Draft Report of the Committee on the Budget Vote.
The Chairperson indicated that name of the ELRC’s Secretary General was spelt incorrectly, and the correct spelling had been given in an SMS.

Paragraph 1.8 on page 2 of the report twice mentioned SACE, whilst it did not mention the ELRC.

The Chairperson sought clarity on whether the phrase “poor African learner performance” on page 3 was correct.

Ms Lovemore commented it was ambiguous, and could mean the learner came from a poor household.

The Chairperson pointed out a grammatical change to bullet point 3 and quipped that if Ms C Dudley (ACDP) was present, there would be many more grammatical errors highlighted.

Ms Lovemore thought bullet point 4 on page six did not sound correct, and suggested it be excluded.

The Chairperson requested that Members seek clarity on what it was supposed to indicate, before removing it.

Mr Makhubele pointed out that references to “human resources” should be consistently cited with upper or lower case.

Ms Lovemore pointed out the first instance it was a noun, but the second reference was used to mean, in general, employees of the Department.

The Chairperson pointed out an incorrect acronym on page 16 of the report, and Mr Makhubele indicated two grammatical errors on the same page, which were corrected.

Ms Lovemore asked if it was normal that most Committee queries on page 32 were phrased in question format yet the answers were not recorded.

Mr Llewellyn Brown, Committee Secretary, replied the answers only were recorded in the minutes of the Committee but the report noted questions and answers.

Mr Makhubele questioned the correctness of a sentence on page 33, in relation to Umalusi’s role with the Annual National Assessments.

The Chairperson thought the phrase “standardisation of ANA” should have been used, and Members agreed to expand the sentence.

Ms Lovemore said the Committee could not deal with pages 39 and 40 as they related to the ELRC, and the Committee still awaited the Council’s report.

The Chairperson concurred and said the report would be revised.

Mr C Moni (ANC) wanted to know if the Committee was going to make a recommendation on the backlogs, as they were a serious matter, and felt it must be pointed out that management of backlogs needed to improve.

Mr Makhubele commented that what was described as backlogs may not be so, but merely matters reported from the previous year.

Ms Lovemore was unhappy with the reference to the Committee assisting in implementing government programmes, as this was not why she was in Parliament. She asked that this be rephrased to say “help to achieve appropriate levels of learning”

Mr Makhubele said Parliamentarians had a particular role, which was not about implementing programmes of government, as the Executive should perform that role.

Members adopted the Report on the Budget Vote, with amendments.

The meeting was adjourned.