Basic Education BRRR; ELRC Collective Agreements; Current matters affecting Basic Education Sector

Basic Education

17 October 2018
Chairperson: Ms N Gina (ANC)
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Meeting Summary

2018 Budget Review & Recommendations Reports – BRRR

The Portfolio Committee on Basic Education received a briefing from the Education Labour Relations Council (ELRC), updating it on the ELRC’s collective agreements and current matters affecting – and of interest to -- the basic education sector.

The main issue that was raised by Members involved those teachers who resign and leave the system, and then rejoin. This was often to access their pensions. It was proposed that teachers who left the system for more than two years must start afresh if they wanted to join the system again, regardless of how many years of experience they had. Some Members were interested to know what the opinion of the trade unions was on the matter.

The second issue which came to the fore was the fact that there was a lack of synergy between the ELRC and the South African Council of Educators (SACE). Members asked what the relationship between the two entities was and suggested that a special session be held, with both entities present, to clarify the role of each and to create better synergy between them.

A major topic of discussion was sexual violations committed by educators against students. A member of the community was obliged to report such cases to the police if they had knowledge of them, but the Committee was worried about the safety of “whistle blowers,” and asked whether they were protected if they reported violations. Also, when a child reported a case, they were often asked to be present at hearings from SACE, the Department and the ELRC, and so forth. Members commented that this could be very traumatic for children and was unnecessary. The Chairperson commended the ELRC on their ongoing work to prevent this from happening.

In the same line of discussion, the issue of false accusations arose.  A lot of cases were often taken as false accusations, whereas everyone knew they were not. However, bribes were rife, especially in rural and poor communities, and charges were dropped.  Such cases were regarded as false, even though it was evident that a sexual violation had taken place. The Chairperson asked how such cases could be dealt with.

Other points of discussion were the requirements for converting temporary employment to permanent employment; a suggested six-month time line for cases of sexual violations to be heard and closed; and arbitration decisions, and how they affect SACE and the ELRC decisions

Meeting report

Education Labour Relations Council (ELRC) Presentation

Ms Nolusindiso Foca, General Secretary, ELRC, said that in giving effect to the ELRC mandate, noteworthy partnerships had been established in 2018 and critical agreements had been concluded in response to the broader objectives of the country’s National Development Plan (NDP).

She then proceeded to speak to the following collective agreements:

  • Collective Agreement 2 of 2018 (Amendments to paragraph B 8.5.2 and B 8.5.3 of the Personnel Administrative Measures): Outdated legislation, policies and collective agreements in Personnel Administrative Measures (PAM) had resulted in incorrect implementation of certain provisions of current Collective Agreements.  The PAM was consequently revised and gazetted by the Minister of Basic Education in February 2016. As a way to further strengthen the provisions in the PAM to improve the conditions of service of educators, in line with NDP focus, CA 2 of 2018 was concluded.
  • Collective Agreement 3 of 2018: Providing for compulsory inquiries by arbitrators in cases of disciplinary action against educators charged with sexual misconduct in respect of learners.
  • Collective Agreement 4 of 2018: The appointment and conversion of temporary educators to posts on the educator establishment.
  • Collective Agreement 1 of 2017: Picketing rules.
  • Collective Agreement 3 of 2017: Education Management Services (EMS) performance management and development system for office-based educators.
  • Collective Agreement 4 of 2017: Job descriptions for office-based educators

The ELRC had also hosted an education indaba. This had been necessitated by the current Post Provisioning Norms (PPN) model not being responsive to the needs of the sector.

PPN research had involved a national study on the implementation of PPN 2013, and international benchmark study visits (February 2018) with Heads of Education Departments Committee (HEDCOM) members. Early Childhood Development (ECD) research had focused on the policy and conditions of service for the institutionalisation of Grade R practitioners. The 2017 indaba objective had been for the ELRC to assist the sector in addressing two critical issues -- post provisioning norms and the universalisation of Grade R. Indaba achievements had included the training of provincial education departments (PEDs) and the development of a standardised training manual on the current model. The 2018 ELRC education indaba had been a resounding success, and principles for the existing PPN had been presented. The indaba had emerged with a new brief to radically transform the current PPN.

The Indaba also initiated sound relations amongst parties to the Council – the Department of Basic Education (DBE) and leaders of teacher unions -- as well as the PEDs.

The PPN priorities for 2018/19 were the radical transformation of the PPN, consideration of the three-stream model, policy dependencies, curriculum complexities, school management and poverty variables.

The ECD priorities for 2018/19 would focus on consideration of children in the 0 to four-year bracket, support for PEDs, qualifications, infrastructure issues, policy alignment and conditions of service.

Ms Foca said that in fulfilling its mandate to maintain labour peace, the ELRC had played a proactive role by providing facilitation in the provinces to avert unrest. It had provided ongoing facilitation in the Eastern Cape from 2017 on post distribution and displaced educators. For the first time in the history of the Council, an invitation had been extended to school governing bodies (SGBs) in the province to be part of the facilitation process. SGBs had challenged this process through the courts in the past. The Eastern Cape Collective Agreement No.1 of 2017 had seen the conversion of educators on contract into employment on a permanent basis in the Eastern Cape Education Department, and had been concluded as an outcome of the facilitation process. A management plan for PPN and a human resource data collection tool for the Eastern Cape DoE had been developed.

She said parties to the ELRC were commended for the collaborative spirit displayed to conclude essential agreements for the sector, and the Council wished to thank the Portfolio Committee for the ongoing support of its initiatives over the years.

Discussion

Ms N Tarabella-Marchesi (DA) said as soon as there were talks of amendments within the agreement, a lot of concerns arose, especially amongst the trade unions around the permanent employment of teachers employed on a temporary basis for three months. What exactly did it entail, and why did the unions have such a big concern over that matter? Then also, what did the unions say concerning teachers having to start working at a lower level than they were at before, if they resigned for two years? If, however, a teacher did not decide to resign but decided to take a sabbatical, how long a sabbatical was allowed by the Department? She said it was quite strange that the South African Council for Educators (SACE) did not automatically register SGB members. She asked if she had maybe misunderstood something in terms of that, and one member of the delegation confirmed that she had misunderstood and that was not the case. Another issue was the lack of synergy between the ELRC and SACE in disciplinary cases. When a hearing arose, there should be synergy between the ELRC, SACE and the school involved in the sense that at the hearing, both the ELRC and SACE must be present and take part in the decision-making process to have one collective agreement. It had been mentioned in the presentation that one case presented to the Member of the Executive Council (MEC) took three years to complete, so a timeline must be set, otherwise holding the responsible parties accountable would be difficult, as witnesses over time would disappear from the system as well. Ideally, cases should be handled within six months.  

Ms C King (DA) spoke first about section 54, which stipulates that a person may report a teacher that they believe had committed a sexual crime to the SA Police Service (SAPS). She said in terms of principal offenders, it could revert back and require that one must have proof that someone committed a sexual crime.  Had the aforementioned been worked into section 54? The reason was that it may be challenged in court. A teacher would be placed on a pending register, but that teacher may bring forth an argument that he or she was being treated unfairly because their case had not been heard yet before the court or arbitrator; so it could be problematic. Her last question was on the arbitration decisions. Indeed, the decision taken by the arbitrator was legally binding and final, but in recent years at the Commission for Conciliation, Mediation and Arbitration (CCMA), arbitration decisions had been taken to be reviewed and appealed. Had the ELRC looked at that challenge? SACE faced a challenge in that it could not strip a teacher of his or her role unless a court of law had actually challenged that decision.

Ms J Basson (ANC) said she was interested in teachers that left the system and came back. When coming back, if they had been employed for six years, they would be appointed some notches up. She was of the opinion that even if a teacher had as much as 20 years’ experience, if they left the system, when they came back they had to start afresh like a new teacher. It seems as if, for one to be promoted, one needed to leave the system and then come back. Was it not unfair for those who stayed in the system longer, only to be headed by someone who had left the system?

She asked the ELRC to go into more depth on the picketing issue and explain how the entity could help the districts or provinces to prevent potential strikes in critical times, such as during exams.

On the Children’s Act, was the ELRC in a position to give statistics of cases that had been unresolved, and how long would the process take for them to be resolved? In addition, did it have statistics of teachers that had been found guilty, or were supposed to be out of the system according to the final verdict of their cases? Lastly, she asked what the relationship between SAPS and the ELRC was, and how long a teacher should be ‘temporary’ in order to be recognised as qualified to be permanent.

Ms H Boshoff (DA) commended the ELRC on their work, and said it was the best presentation she had heard in a long time. SACE had said all SGB applications were treated the same way, but somewhere there was a gap. She asked the ELRC to give feedback on that because it seemed what SACE was saying was different to the ELRC’s view. She also spoke about the training for intermediaries for child witnesses, as a child meant someone under the age of 18. However, how must children who were over 18, but still in the schooling system, be handled?

Mr A Botes (ANC) welcomed the report overall, in particular the part about good corporate governance. The financial indicators of any entity gave a picture of the ethical leadership of that institution, so the ELRC had done a job well and the Committee hoped that its books would remain clean. He also welcomed the focus that the Council had taken and how they had assumed the role of being the children’s guardians at schools.  There was study entitled “The Optimist Study” by the University of Cape Town (UCT). It revealed that in South Africa, roughly 35% of young children had experienced abuse at and early stage of their life, and further studies indicated that most of the abuse took place at home or in an environment of affinity. What the Committee needed to do was to stop the rot of sexual predators at schools, and have zero tolerance for them.

In the presentation, it had been indicated that there must be alignment of the Council processes with those of SACE to give effect to section 120 of the Children’s Act. The Act had been amended to clearly state what constituted a sexual offence. What was concerning now was that the realignment of the Council was one component of it. The inactive nature of the sexual offences register in South Africa had been consistently problematic, and if the Committee wanted to be regarded as serious stewards of the people, a special combined session with the Council, SACE, the Department of Social Development and SAPS was needed.  If one child was violated sexually at school, it incriminated everyone. People indeed get wrongly accused, but if anyone gets accused, that person must be off the school terrain -- they must not carry out their educative role. Wrong accusations were a minority, and most people who were accused had actually committed the crime. A very specific session must take place, where the topic is the sexual violation of learners by educators. The necessary ministerial leadership should be present so that the Committee’s work could be more relevant. He again commended the ELRC on their leadership.

Mr D Khosa (ANC) asked about the relationship between SACE and ELRC. What was SACE’s responsibility in a case where they had to overrule two bodies?

The Chairperson said she wanted to be realistic on the issue of false accusations. A lot of cases could be taken as false when everyone knew they were not, but due to bribes which were rife especially in rural and poor communities, charges were dropped and such cases were regarded as false even though it was evident that a sexual violation had taken place. How could such cases be dealt with? This included cases where females abused young boys. Essentially if a case was dropped due to bribes but it was very evident that someone had committed a sexual crime, how should they be dealt with by the law? She was, however, happy about the ELRC taking a good step in protecting young people from being exposed to secondary trauma. On the synergy between the ELRC and SACE, one day a discussion together with SACE and ELRC must be held with the Portfolio Committee so that clarity could be achieved concerning the relationship between the two. Lastly she asked what time frame the entity was looking at to respond to the PPN issue. The Committee would like to see the issue being finalised.

Ms Tarabella-Marchesi asked what the exact qualifications of ECD practitioners were, since they were going to be formalised. SACE had a backlog of cases. Did the ELRC also have backlogs? If so, what was it doing about them?

ELRC’s response

Ms Foca responded on the conversion of temporary education, and said the agreement was very explicit on the process that had to be undertaken for the suitability of an educator to be changed to permanent. It was not just the fact that they had been working for three months that led to permanent employment. Firstly; there must be a vacant post, and if not there must be a need for the skills of that teacher. Some temporary teachers were just there to substitute for a sick teacher or a teacher on maternity leave or for various other reasons. The process and categories were explicitly explained. For the permanent conversion, the probation requirement was still there. Any other obligation did not fall away.

On the question of SACE and SGBs, the ELRC had jurisdiction to deal only with employees employed by the state, while SACE oversees all educators, regardless of who they are employed by. Because ELRC was limited to only those employed by the state, an issue was to say something must be done about other people who were not employed by the state.

Regarding synergy, a presentation had been made to the Ethics Committee, and she agreed that it was time to draw synergy between the processes of SACE and those of the ELRC. In addition, there was a proposed protocol which had been subjected to SACE’s own internal purposes, and it would entail collaboration of role players in the system. On the question of the MEC’s response to the appeal process, the MEC did not play a role there. An arbitration decision could be set aside only in a court of law. Once an award was issued -- with due respect -- what gets to be taken on review was not the merits, but the conduct of the presiding officer, not the dismissal. There were some cases, however, that the MEC would receive.

The question had been raised that if a community member knew that a sexual violation had occurred to someone else, should that person be obliged to report to SAPS? SAPS had a responsibility to investigate cases. Only the name of the person who was convicted could go on the register, so the person reporting the abuse was protected.

Ms Boshoff asked what protection would be given to a whistle blower if they were aware of this case of sexual conduct.

Ms Foca replied that she wanted to believe that once the matter had been reported, it was going to be the state versus the perpetrator, and the name of the person who reported would not appear. Perhaps in the protocol agreement, clarity could be given on such issues. She also suggested that the ELRC must run an advocacy campaign with pamphlets together with SACE, to demonstrate that members of the community were protected if they reported sexual violations.

On the reappointment issue, regrettably parties had agreed that experience needed to be recognised. There had been a review of the policy -- that it was going to be a deterrent.  With this review, a person would not just resign but think twice before resigning. The ELRC was relying on the advocacy campaign so that teachers were sensitised to the matter.

Regarding picketing, whenever the ELRC was alerted that there was potential for a picket, it arranged meetings and tried to prevent it from happening, but in some instances the entity learns of the picket on TV. The people need to be educated and informed that picketing was regulated. So, while the notice for picketing was served, the ELRC would try to jump in.

In terms of the resolved and unresolved cases, the ELRC had no information on that. However, it could find the information and it could be passed on to the Secretary of the Committee. The ELRC only had statistics of cases that had been referred by individuals claiming unfair practice. Pending cases were to be finalised, because the agreement could not be implemented retrospectively.

SAPS and the ELRC were linked to ensure participation of a protocol agreement that was going to regulate how all parties would work together.

The definition of a child was in line with criminal law -- anyone over 18 was an adult. In the case of a school child over 18, it would still be heard. That person would be given a choice to be present through a third party, or directly. On the suggested special session, ELRC had noted all the comments. She believed that at the time of the special session, a protocol agreement could also be signed and discussed.

On the powers of SACE, if they conducted an investigation, witnesses were required, but there would be a lack of witnesses. So despite the ELRC issuing an award to say a person was guilty of a sexual violation, SACE would have no choice but to say the person was not guilty, due to the lack of witnesses.

Adv Luvuyo Bono, Chairperson: ELRC, said unfortunately it became a serious matter when educators left the system in order to receive their pension money, and then tomorrow they were brought back into the system. Such a case had literally happened. The agreement thus sought to deal with all these unfortunate situations. In 2013, he had been involved in arbitration for someone who had raped a child and been dismissed. He had decided to call the grandmother of the victim, as she was constantly absent from the hearings. The grandmother had said the child had been called to two or three other hearings -- at the Department, SACE, and so forth. The case had had to end up with a settlement agreement because there was no evidence to prove that a sexual violation had taken place.

On the issue of a sabbatical, if one wanted to take a sabbatical, in the law one could take unpaid leave. The ELRC, however, wanted to prevent the abuse that was happening in the system so if someone had proper reasons to leave, they could apply for unpaid leave and not exit the system. Part of the abuse that existed and what section 188 addressed, was because the departments took too long to amend the appeals. The Employment Equity Act (EEA) did not have timeline, and some cases took even up 10 years to be closed. The ELRC was assisting in closing these gaps, doing it in only one year.

Ms Tarabella-Marchesi asked about strike action, How far from a school could a picket take place? She asked for a clear guideline on that. She mentioned that should there be any abuse at school, one could make a phone call anonymously and directly have access to a social worker, policeman and so forth. If a district was performing well in certain respects, could the Committee prompt them and find out how to follow their example? Could all provinces have their own call centres? She essentially wanted to know if the Committee had powers to advise on that.

Ms Boshoff asked if there was any way the ELRC could point the Committee to a case number to see where the fall outs were, in case the Committee was contacted about something to that effect. Secondly, she commented on the child who did not want to go after three sessions, and asked how cases with learners severe mental or intellectual disabilities would be dealt with.

The Chairperson agreed with Ms Tarabella-Marchesi that good practices must be learnt from other provinces. She confirmed that it was the role of the Committee to share with other provinces during oversight visits, and also to learn from the other provinces.

Mr Bono responded to the second round of questions. He said picketing may happen five meters from the school, and it was also based on the guidelines by the Department of Labour on picketing. In cases of children with disabilities, intermediaries were there to assist. That was why having one hearing with all the relevant parties present was good, because the child would be surrounded by those who could protect him or her.

The Chairperson said the ELRC presentation had been encouraging, and agreed that there was good leadership in the entity. She encouraged them to continue to do the good work. Though the ELRC did not report directly to the DBE, it must now and again come to the Committee so that it could see what progress had been made. She thanked them for the presentation.

Draft BRRR corrections

The Committee considered corrections to the draft Budgetary Review and Recommendations Report (BRRR).

Ms Tarabella-Marchesi asked for a minor change on page 27: Performance indicators, for a spelling error, changing SASCE to SACE.

Ms Basson referred to page 52, and asked which word  should be used between provide,  “Parliament” or “Portfolio Committee” She also said the Committee needed to take the lead in saying the utilisation of grants were for maths and science and so forth, and if  the funds were not exhausted it was a problem. Did this point carry that emphasis? She suggested that words like “if a department underspends, then funds would be reallocated”.

Ms Boshoff said on page 54, the point stating “strengthening districts” needed to change.  It had to be brought across more strongly.

Ms Basson also suggested the content advisor should put more emphasis on those words and make them stronger.

The Content advisor said his task had been made easier. Regarding the recommendation on conditional grants, the words could be strengthened by adding the following: “there should be consequence management for those provinces that do not comply.” A process should be put in place to ensure that the officials account. Secondly on districts the same words could be applied: “there should be consequence management for those districts that underperform.”

Ms Boshoff said matric must be inclusive for learners with special needs. She suggested using the words “add time line as from next year.”

Ms Tarabella-Marchesi noted that the document had no sequence for abbreviation.

After the Content Advisor was notified as to which changes must be made, Ms Basson proposed the adoption of the BRRR, and Mr Botes seconded.

The Chairperson thanked the Members for their hard work.

The meeting was adjourned.

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