Basic education department's director general Bobby Soobrayan. (Gallo)
It emerged at the Labour Court on Tuesday that the national department picked up late in November 2011 that the agreed increment was too costly, after provincial departments complained they had no budget for it. Provincial education departments pay exam markers.
Tuesday was the second day of the court hearing in the case brought jointly by teacher unions against the department. The unions, which include the South African Democratic Teachers' Union (Sadtu), the National Professional Teachers' Organisation of South Africa and the Suid-Afrikaanse Onderwysersunie, seek to compel the department to enforce the collective agreement reached in 2011 at the Education Labour Relations Council.
But the department wants the court to accept that its director general Bobby Soobrayan made an error when he signed the document and it should therefore not stand.
Simone Geyer, the department’s senior official who was chief negotiator in the bargaining talks leading to the disputed agreement, testified that "towards the end of November [2011]" human resource managers from provinces were asking her "where’s the additional money" to pay markers according to the agreement.
"I immediately realised we did not have the money in the budget. I went to inform the director general [Soobrayan] about it," Geyer told court.
That is when the department became aware that the agreement Soobrayan signed in April 2011 was "different" from what was agreed to in the chamber, claimed Geyer. Geyer said she was away in the Eastern Cape to attend to family bereavement when Soobrayan called her via Paseka Njobe, a director in his office, to check if the five-page document that had been delivered to him for signing was correct.
"I confirmed [them]," she said.
'Adjusted annually'
She told court Soobrayan signed under the impression that the agreement increased salaries according to the requirements of the notice in the Government Gazette, which Minister Angie Motshekga published in March 2011. The gazette, seen by the Mail & Guardian, determined that examination-related hour-based remuneration should be "adjusted annually by [the consumer price index] on July 1 of each year".
The department's negotiators only had a mandate to negotiate based on the gazette, said Geyer. This explains why an agreement was reached to double marker salaries, and not increase only according to the gazette.
Mugwena Maluleke, general secretary of Sadtu, told the court on Tuesday that the negotiated increase was in line with the 100% increases given to examiners, moderators and translators in 2008. Gerrit Pretorius, senior counsel for the department, said the agreement was unenforceable because, in addition to have been signed erroneously, it would also cost an "unaffordable" extra R750-million per year.
Geyer, who is the department’s chief director for education human resource management, has since undergone an internal disciplinary hearing for her role in the agreement and handed a final written warning.
Nazir Cassim, senior counsel for the unions, cornered her to answer why they continued to negotiate outside the gazette, which unions knew nothing about during bargaining.
"You say there was a mistake [in signing the agreement], whose mistake was it?" Cassim threw down the gauntlet to Geyer. She responded, "I’d assume it was a mistake by all parties," because what was finally signed was "blatantly different" from what was agreed.
“It can’t be my mistake alone because both parties signed,” Geyer told the court. “I believe it’s a mistake by both parties."
'Bad faith bargaining'
It must be accepted then that the department’s negotiators were not consulting in good faith throughout the year-long negotiations as they never alerted unions that a gazette was in the pipeline to determine markers’ salaries, said Cassim.
"That was bad faith bargaining, in this case very bad faith," Cassim told Geyer.
She responded, "That is not bad faith bargaining."
"Is it good faith?", Cassim asked – the question to which Geyer stood her ground that they negotiated in good faith.
The fateful collective agreement has had disturbing implications on the public education sector. Teachers belonging to Sadtu embarked on a go-slow in schools and several marches and pickets earlier this year demanding Soobrayan’s sacking for signing it and only to cry foul when he had to implement it. Soobrayan will now face internal disciplinary hearing for his mistake.
The hearing was adjourned to 11.30am tomorrow for start of arguments.