Note to editors: this statement was presented at a press conference convened by Sadtu Eastern Cape Provincial Task Team.
20 October 2016
The character of SADTU.
The South African Democratic Teachers` Union was established against the background and within the context of the struggle against apartheid and as part of the broader mass democratic movement. SADTU was established with a particular political objective which is to advance the cause of realizing quality public education in line with the objectives of the Freedom Charter. SADTU is unashamedly a political union and locates the struggle for quality public education within the broader struggle for the total emancipation of the people. It is in this context that SADTU often has to contest some of the major challenges with a clear political understanding of the material conditions in the country.
One of the key responsibilities of SADTU is to be part of daily community struggles whilst maintaining the primary education objectiveof addressing issues related to learning and teaching.
The current context.
SADTU operates in an environment characterized by the ongoing stubborn legacy of the apartheid education system that allocated the best and most of government resources to a minority. It is in this context that we appreciate that we cannot just be teachers in total ignorance of the daily struggles of our people.
We appreciate that education is a societal matter and has an impact on the life of society. In this context SADTU appreciates that the problems facing the education system affect society.
The ongoing problems in the Eastern Cape.
It is a matter of public record that the Department has over many years experienced more or less similar problems. At the receiving end of these problems have always been our members both teaching and non-teaching and the children. It is these persistent problems that have characterized the relationship between SADTU and the department over many years. Even with these persistent problems, our members continue to do their best mostly under very trying and testing circumstances.
The current situation.
Recently, the Acting Head of Department has elected to resort to legal action and in just one month brought three urgent applications in the High Courts against SADTU. One of these applications was struck off the roll with costs because it was found not to be urgent and not to have a basis. The other application in the Bisho High Court where the department had obtained an interim order was partly concluded on the 18th October 2016 when the court discharged an interim order granted against SADTU after SADTU challenged the interim order. The third application is the one that brought about the settlement agreement that has since been made an order of the court.
SADTU respects the right of the department to take whatever action it deems fit to assert its rights. In the same spirit SADTU equally enjoys rights to take action whether legal or otherwise to assert its rights. It is in this context that we opposed all these applications.
It is also in this context and owing to failure of the department to address issues affecting members and the learners that after obtaining the requisite authorizations from the relevant competent authorities, SADTU embarked on protests and pickets to highlight the plight of our members.
The Acting Head of Department seems to see any difference of opinion with SADTU and any attempt by SADTU to put pressure on her and the department to address the various concerns as personal attack and has sought to use litigation as a means to suppress SADTU and intimidate us from raising the issues affecting our members.
We remain undeterred to pursue the issue affecting our members within the framework of the law. These are the rights we have in terms of our constitution and other law.
SADTU is a party to collective agreements regulating post provisioning. Very recently SADTU as part of the Education Labour Relations Council concluded a new collective agreement ( Collective Agreement No 4 of 2016 ) to replace the existing Collective Agreement of 2003. The department is part of the employer party that concluded this collective agreement. Even as this collective agreement was being finalized and with that full knowledge, the Acting Head of Education, in pursuit of her hatred for SADTU, initiated these series of litigations. It is important to draw to your attentionto the obvious expression of her hatred of SADTU as stated in paragraph 31 of her founding affidavit in the court application where she states that:
" Based on my previous interactions with first and fourth respondent and my knowledge of the modus operandi of first respondent, I have every reason to believe that they will carry out their public threats to disrupt everything within the department."
We further refer to paragraph 4, of the Acting Head of Education`s letter 9 March 2016 where it is stated that:
It is clear from the above that the Acting Head is well alive to the reality that the failure of the post provisioning process in the Eastern Cape was owing to the reasons set out above. The Acting Head seeks to divert attention from these admitted failures and blame SADTU.
It is also important to highlight that even as matters stand SADTU cannot tell as to how many posts were in fact declared for 2017. We have written to the MEC and are still awaiting his response. It is very unusual that for the first time the MEC still has to make a public announcement. We provide you with the letter we had written to the MEC which was not responded to. The declaration by the MEC is a legal requirement and this should be seen as the cause of the problems in the education sector in our province.
SADTU does not have any issue with the transfer of educators additional to the post establishment. SADTU has issues with the persistent non-compliance by the department with collective agreements. One classical example is Collective Agreement 1 of 2014 which requires the establishment of the PTT to coordinate the transfers. The department has refused to participate in the setting up of the PTT. In essence, transfers cannot be effected until and unless the PTT has been established.
SADTU will inform its officials not to interfere with any identification if any such interference occurred. However SADTU, in the light of identified potential legal problems fully reserve its rights to enforce existing collective agreements should any identification not comply with any existing collective agreement.
SADTU calls upon the department to ensure full compliance with existing collective agreements to prevent any disputes that may delay the identification and transfer process.
The Settlement Agreement.
It is important to highlight that SADTU has always sought to engage the department to address the problems associated with post provisioning. SADTU does not believe that it is in the interests of its members that this matter remains unresolved. As you may be aware, SADTU entered into a settlement agreement with the department for an additional 1665 posts. This settlement agreement was subsequently made an order of the court. Despite this the department has not fully finalised the implementation of this agreement and a number of educators appointed remain unpaid.
The current settlement agreement amply demonstrates the commitment of SADTU to find a lasting solution to the current post provisioning challenges. Maybe it is important to draw to your attention the proposal SADTU developed as part of the settlement negotiations. We give you a copy of our proposal to demonstrate to you the extent to which SADTU went in seeking to have a sustainable solution. It is up to you to form your own views why these proposals have not found their way into the settlement agreement.
We have noted with grave concern what appears a triumphalist approach of the Acting Head and her uninformed attacks on SADTU and the General Secretary. At no stage as it appears from the General Secretary`s affidavit did SADTU and the General Secretary say children do not have a right to education. What SADTU and the General Secretary state and repeat is the constitutional and legal duty to provide education is that of the state and not of SADTU. This cannot by any means be equated to a suggestion that SADTU does not recognize the rights of children to education. In any event in the same spirit of rights ofSADTU as a registered trade union and its members enjoy the labour rights set out in the Bill of Rights. For the Acting Head of Department to make the suggestions she made amply demonstrates here propensity to stir conflict and escalate tensions. We will notallow SADTU to fall in that trap.
We appreciate that there is a view that this settlement agreement and the court order has become panacea of the problems. Whilst we wish to join in that view, we are constrained by the reality. When the negotiations commenced, it was our view that the parties return to the Education Labour Relations Council to conclude an agreement on the way forward. The Acting Head of Department however wanted an agreement as a court order. As the applicant in the matter, it was incumbent on the Acting Head of Department to consider our request and make an election. She elected that she wanted the matter resolved through the court process.
We raise this issue firstly because the pressure of time to conclude a settlement agreement by the date of the court would have deprived the parties of an opportunity to think through the issues more clinically. In our case it was necessary to have a special meeting of the SADTU PTT to resolve on our proposals which we have earlier referred to.
With the benefit of hindsight and further advice, it appears that the settlement agreement may have some major legal challenges and this may have an adverse effect on its implementation. We are still in a process to look into these legal challenges that have now been drawn to our attention after the conclusion of the agreement and after it was made an order of the court. Because of the current status of the agreement as a court order, we are looking at what proposal we can make to the department to correct whatever identified deficiencies.
For the record we wish to point out that the following might undermine the implementation of this agreement and court order.
It appears that the Education Labour Relations Council enjoys exclusive jurisdiction in matters related to the education sector. Section 37(5) provides that:
"37 (5) A bargaining council established in terms of subsection (2) has exclusive jurisdiction in respect of matters that are specific to that sector and in respect of which the State as employer in that sector, has the requisite authority to conclude collective agreements and resolve labour disputes."
It may be that this oversight on our part and that of department may put this agreement in jeorpady.
Clauses 2.3 to 2.5 deal with an agreed dispute resolution procedure. The above clauses envisages a procedure outside of the ELRC procedures. Based on Section 37(5) it maybe that it was not competent for the parties to conclude these terms as they are contrary to the Labour Relations Act and ousts the guaranteed and protected jurisdiction of the ELRC. We must bear in mind that the ELRC was not party to the legal proceedings and the agreement and court order are not applicable to it.
Having regard to the provisions 23 of the Labour Relations Act, it appears firstly that settlement agreement does vary two collective agreements dealing with the subject of post provisioning. The main collective agreement which is Collective Agreement 4 of 2016 provides detailed procedures for the transfer of educators additional to post establishment of schools. Collective agreement 1 of 2014 sets out further procedures and particular dispute resolution measures relating to transfer of educators. It appears that the settlement agreement undermines these provisions.
In the light of the above we have resolved to draw to the attention of both the department and the ELRC these potential difficulties with a view to determining how best we can resolve this to avoid the collapse of the settlement agreement and the court order. We hope that all the parties will put their heads together to find a way of dealing with this.
The postponement of the PELRC.
SADTU is disappointed that the department has effectively suspended the business of the PELRC by requesting the indefinite postponement of the PELRC business.
The implication hereof is that no further business can be transacted by the PELRC until the department indicates its availability. This compounds the current situation having regard to the potential legal problems identified regarding
the settlement agreement.
SADTU recognizes the department`s right to abstain from the ELRC but wishes that this contradicts the publicly stated position of the department that it wishes to rehabilitate its relationship with SADTU.
SADTU further warns that it also fully reserves the right to enforce any other right arising in law or collective agreement.
Over a period of time we have raised various concerns with the department, the Acting Head of Department and the MEC. There has been very little progress in addressing these issues if any at all. These matters include but are not limited to:
Early Childhood Development (ECD)
The Union demand that all ECD educators in the mainstream schools be appointed permanently by the Department of Education taking into account their qualifications.
The stipend paid to ECD be improved to the same status of other provinces in the meantime; whilst their conditions of service are properly negotiated.
It is our call that conditions of service for ECD educators including community centers must be regularized as a matter of urgency because these educators are currently working under precarious conditions. We want the ECD Sector to be formalized with immediate effect.
We realize that the Acting Head of Department have developed efficiency in bringing urgent applications against us as part of her agenda to silence the union. We wonder why the same zeal and energy is not used to address matters related to our members.
As already pointed out we will comply with our part of the responsibility. This does not however mean we will be intimidated from taking forward issues affecting our members.
We will in the next few days initiate legal proceedings in respect of some of the issues not covered by the collective agreement to force the department to comply with its legal obligations.
Issued by: SADTU Eastern Cape Provincial Task Team
For enquiries: Provincial Administrators
Sindisile Zamisa- 0605875786
Chris Mdingi- 0605834462