Memorandum of Agreement between the Premier of Eastern Cape, MEC for Education, MEC for Health and the unions

8 Feb 2012

1. The parties

1.1 The parties to this memorandum of agreement are the Premier of the Eastern Cape, MEC for Education of the Eastern Cape, the MEC for Health of the Eastern Cape Province (collectively referred to as the ‘Provincial Government'; and individually referred to as the ‘Premier', the ‘MEC for Education' or the ‘Provincial Department of Education' or the ‘MEC for Health' or the ‘Provincial Department of Health') and the representative unions being South African Democratic Teachers Union (SADTU), National Education Health and Allied Workers' Union (NEHAWU), South African State and Allied Workers Union (SASAWU), South African Medical Association (SAMA) and South African Municipal Workers Union (SAMWU) respectively (collectively referred to as the ‘Unions', and individually referred to as the ‘relevant union', or ‘SADTU', ‘NEHAWU', ‘SASAWU', ‘SAMA' and ‘SAMWU').

2. Provincialisation of local health care

It is agreed that:

2.1 The Provincial Government acknowledges and accepts that it will not, as a general principle, implement any measures that will affect the rights of its employees without consulting the Unions and complying with the Labour Relations Act 66 of 1995, the Basic Condition of Employment Act 75 of 1997, any applicable collective agreements, and any other relevant statutes.

2.2 As a general principle of engagement, and without limiting the contents of paragraph 2.1, the Provincial Government will not implement measures that directly or indirectly affect the rights of employees without consulting the Unions.

Decision: That the MEC for Health, in consultation with relevant unions organising in Health Sector including SAMWU will convene a meeting with all affected health workers to be transferred from municipal clinics to the provincial health institutions in order to clarify the process of their transfer and the implications, if any, in respect of their current conditions of employment will not result in any loss of their benefits.

Action: MEC for Health
Time Frame: With effect from Monday, 6 February 2012.

3. Case of the 25 Doctors in the Nelson Mandela Academic Hospital and post provisioning

It is agreed that: In line with the principle articulated in paragraph 2.2 above, doctors may be moved or transferred in consequence of the post provisioning in the department health, for the purpose of equity, only after consultation with the relevant unions and with due consideration of all relevant factors, including the effect of the move on the doctor's family life, health and other legitimate considerations.

Decision: A meeting should be convened through SAMA with all 25 doctors affected as soon as possible.
Action: MEC for Health
Time Frame: Thursday, 9 February 2012.

4. Human Resource Operations Plan Task Team (HROPT) 

4.1 The parties acknowledge the history of the HROPT.
4.2 The parties record that the matter was the subject to an arbitration process led by a joint technical committee of the Provincial Government and NEHAWU.

Decision: It is recorded that both of these parties have agreed with the recommendations of the joint task team and signed an agreement arising from this exercise ("the Provincial Government/NEHAWU Agreement"). 

The other non‐parties to his process such as SASAWU will study the Provincial Government/NEHAWU agreement and decide if it addresses their concerns. If the Provincial Government/NEHAWU agreement addresses SASAWU's concerns, the union will not proceed with a court action challenging the HROPT.

Action: NEHAWU, SASAWU and Provincial Government

5. Post provisioning and temporary teachers

5.1. The parties record that in a matter (case 60/2011) between the Federation of Government Bodies of South African Schools (‘FEDSAS') and three others and the MEC for the Department of Basic Education and another, held in the High Court, Bhisho, in Eastern Cape, Judge J.W. Eksteen granted an "interim order to operate pendent elite" in favour of FEDSAS; ordered that: "The respondents (Eastern Cape Department of Education) are ordered to fill all substantive educator posts which in 2010 were occupied by educators on a temporal basis at the public schools in the Eastern Cape Province, within five (5) days of the date of service of this order, by reinstating and continuing to employ such educators pending the finalisation of the review proceedings instituted in the court under case No. 60/2011, made the following order:

(i) The application for leave to appeal is dismissed,
(ii) The respondents are ordered to pay the cost of the application for leave to appeal and the costs occasioned by the application in terms of Rule 49(11).

5.2. The parties also record that in the matter between PJ Olivier High School and others and the MEC for Education for the Eastern Cape held at the High Court of South Africa, Eastern Cape division in Bisho, on 14 July 2011 Justice B. Hartle ordered as follows:

"The respondents shall: In terms of the prescripts of the prevailing legislation, determine the 2012 post establishment for educators in the Eastern Cape Province:

• Declare and communicate to the schools such post establishment by the 30 September 2011;
• Advertise such declared posts by: 31 October 2011 in respect of the post 1 Educators; 30 November 2011 in respect of the Head of Departments and Deputy Principals; 31st December 2011 in respect of School Principals;
• Fill all declared posts in terms of the 2012 Establishment by 31st January 2012;
• Fill all vacant substantive posts in terms of the 2010 Post Establishment on a temporary basis pending the implementation of the 2012 Post Establishment, provided that where the learners numbers have decreased in a specific school, temporary educators will appointed in terms of the 1:34 National ratio to such schools pending implementation of the 2012 Post Establishment 30 days from this order; The Review Application under Case No. 60/2011 is hereby withdrawn and the rule nisi granted in terms thereof shall lapse with effect from 30 days of this order; The Respondents will pay the costs duly taxed jointly and severally in respect of this application. "

5.3. The parties further record that in a matter between PJ Olivier High School and others and the MEC for the Department of Education, in the High Court of South Africa ‐ Eastern Cape, Bisho which was heard on the 27 September 2011 under case no. 214/2011 and judgement delivered on 4 November 2011, Judge J. Mjali ordered as follows:

• The application by the first respondents (MEC for Education) and second respondents (HOD for education) for the rescission of the whole of the order of Hartle J granted by consent on 14 July 2011 is dismissed.

• The counter application is upheld.

• The first and the second respondents are ordered to pay the costs of the main and counter application including those consequent upon the employment of two counsel jointly and severally.

• The third respondent (the Minister of Basic Education) is ordered to pay the wasted costs occasioned by the postponement of this matter on 20 September 2011 as well as those relating to the hearing of the application for costs on the 27 September 2011.

5.4. In an application for leave to appeal against the order and judgement of the Mjali J, the latter made the following order on 14 December 2011:

• The application for leave to appeal is dismissed with costs including those consequent upon the employment of two counsel jointly and severally.

Decision: Despite the above outcomes and orders handed down by the High Court, the parties agree that:

• The Provincial Department of Education has not complied with judgements and orders referred to above;

• The Provincial Department of Education undertakes to comply with the court orders and, in particular, to reinstate the temporary teachers in terms of the judgements and orders handed down by Judge Hartle B;

• The MEC for Education will release a circular by the 10^th of February 2012 to effect the reinstatement of all temporary teachers within 48 hours;

• There is a strong need to reactivate the bargaining processes so that in the future collective bargaining issues are referred to the relevant collective bargaining chambers;

• The chamber will be convened as soon as possible but not less than 21 working days from the 10th February 2012 with a view of facilitating the task and the practicality of the filling of all substantive vacant posts. SADTU will accordingly withdraw its court challenge once the circular has been issued for the filling of the posts.

Action: MEC for Education and SADTU

6. The suspension of educators and other officials in the Departments of Education and Health

6.1. The parties record that:

• The Provincial Department of Education has suspended office based educators and senior management service members;

• The Department of Health has suspended numerous officials in its employment

• Most if not all of these professionals and other employees referred to in the preceding bullets above have been suspended without following any due processes;

• Some of the suspensions were implemented as far back as 2010, and that all of these employees have been suspended on full pay.

Decision: The parties accordingly agree that:

• All employees who have been suspended without following procedures and/or in respect of whom 60 days have lapsed without charges being preferred against them will be reinstated in their employment with immediate effect;

• Relevant unions must provide the list and names of the suspended employees to the MEC for Education and MEC for Health so that the departmental officials could process these within a week from Mondaythe 13th February 2012.

• Every effort should be made to root out corruption in government particularly in the Departments of Education and Health.

Action: MEC's for Education and MEC for Health and the relevant Unions

7. Organogram and restructuring of the Department Of Health and Education

7.1. It is noted that both the Provincial Departments of Health and Education undertook processes to restructure the departments in an effort to improve efficiency and comply with national policy directives ("the restructuring exercise").

7.2 The parties regret that the restructuring exercise was undertaken without consultations with the Unions and that has created anxiety amongst the employees of both departments.

Decision: The parties agreed that:

• as a general principle of engagement, and without limiting the contents of paragraph 2.1, the Provincial Government will not implement measures that directly or indirectly affect the rights of employees without consulting the Unions;

• it is necessary, not only for the purposes of the Labour Relations Act, but in the interests of a constructive relationship between the parties, that the Unions will be consulted whenever there is any form of restructuring and/or changing of the departments' organograms;

• Both departments will forthwith halt any restructuring processes and the filling of posts in terms of organograms, which had been unilaterally drawn by the heads of departments and immediately consult and engage with the Unions.

• The parties acknowledge that the continued poaching of personnel from other state departments to the Provincial Department of Education in the absence of such posts being advertised was undesirable and undermined the current provincial organogram. The parties accordingly agreed that the filling of posts will follow a process, which will include amongst other things; the release of bulletins/Adverts.

• The MEC for Education will resuscitate the stakeholder task team dealing with the organogram.

Action: MEC for Health and MEC for Education

8. The need for a new spirit

8.1. The parties acknowledge that the challenges at hand are huge, systemic and historical. The backlogs arising out of the historical fact that the Eastern Cape province was a home to two Bantustans and is geographically vast and rural. The nature of these challenges requires a coordinated effort at the national level combined with those of the provincial leadership to overcome. We acknowledge that these challenges are not insurmountable and demand absolute determination, vision and collective endeavour to overcome.

8.2 The parties recognise that the unions have a critical role to play in solving these challenges. The trade union movement commits to help improve the quality of service to our people. Accordingly the unions have made a commitment to cultivate a new spirit amongst trade union members and workers in general. A new ethos based on the principles of batho pele is desperately needed in the province to change ethos inherited from our painful past. In this regard the unions embrace Quality of Learning and Teaching Campaign and the Basic Education Accord.

8.3 The parties agree that in order to guarantee realisation of these political commitments to normalise the relations a leap forward is required on both sides. Without normalisation of these relations all these commitments will fail.

8.4 The parties agree that they will fully cooperate with the efforts to convene an Eastern Cape Provincial People's Education Conference scheduled for the 16 - 17 March 2012. This historic conference will be preceded by each stakeholder's own summit to prepare for the Provincial Education Summit. The summit must lay a firm ground for addressing the systemic and historic challenges faced by the education system in the Eastern Cape and help mobilise every citizen of the province to play a role in changing this situation.

Conclusion

The parties recognise that the Department of Education is currently under Section 100 1 (b), which involves other departments such as the Department of Basic Education, Department of Public Service and Administration, National Treasury, Higher Education, Department and Justice and Constitutional Development and the Office of the President, known as the 5 aside. The parties acknowledge that the national government through the 5 aside may take decisions that have a bearing on this agreement, should such arise the Unions will be consulted.

Issued by Eastern Cape Education February 8 2012

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