Regulation No.594 of 1998

I, Sibusiso Mandlenkosi Emmanuel Bengu, Minister of Education, after consultation with the organised teaching profession, hereby, in terms of section 28 of the Educators' Employment Act, 1994—

repeal regulation 5 of the Regulations Regarding the Terms and Conditions of Employment of Educators, published in Government Gazette No. 16814, Volume 365, Notice No. R. 1743 on 13 November 1995; and
make the regulations in the Schedule.

S. M. E. BENGU
Minister of Education

March 1998.

REGULATIONS TO PROVIDE FOR INTERIM MEASURES ACCORDING TO WHICH RATIONALISATION IN EDUCATION IN TERMS OF RESOLUTION No. 3 OF 1996 AND OTHER RELATED AGREEMENTS OF THE EDUCATION LABOUR RELATIONS COUNCIL CAN BE COMPLETED AFTER WITHDRAWAL OF SUCH RATIONALISATION

1. Introduction

Whereas—

the rationalisation of provincial departments of education, referred to as right-sizing and provided for in Resolution No. 3 of 1996 and other related agreements of the Education Labour Relations Council, has been withdrawn due to changed operational requirements caused by provisions in the Constitution and amendments to the Act and the South African Schools Act, 1996 (Act No. 84 of 1996); and

whereas—

this process of rationalisation has not been finalised,

therefore—

the following regulations will apply in respect of educators who, in terms of Resolution No. 3 of 1996, have been identified as being in excess of staff establishments but whose redeployment has not been finalised.

Definitions

2. In these Regulations a word or expression to which a meaning has been assigned in the Act, shall have the meaning so assigned to it and, unless the context indicates otherwise—

"the Act" means the Educators' Employment Act, 1994 (Proclamation No. 138 of 1994), as amended by section 63 of, and contained in Schedule 2 to the South African Schools Act, 1996 (Act No. 84 of 1996), and by sections 14 to 20 of the Education Laws Amendment Act, 1997 (Act No. 100 of 1997);

"educator" means a person currently employed, whether temporarily or permanently, in a provincial or the national department of education, within the meaning of educator as defined in the Act;

"educator in excess" means an educator who is employed in a post which has become in excess of the establishment of the educational institution or departmental office as a result of the reduction of the posts on such establishment;

"Resolution 3" means Resolution No. 3 of 1996 of the Education Labour Relations Council;

"redeployment list" means a list of all educators identified as being in excess of the post establishments of the educational institutions or departmental offices where they are employed;

"funded post" means an educator post at an educational institution created in terms of section 3 of the Act; and

"this rationalisation process" means the rationalisation process contemplated in Resolution 3.

Principles

3. The following principles that have guided the rationalisation process in terms of Resolution 3, must also guide the finalisation of this rationalisation process:

All avenues should be explored to ensure the continued employment in education of educators who have been classified as in excess for the purposes of this rationalisation. The transfer of an educator in the process of redeployment is compulsory on condition that, in the case of a transfer to a post at a public school, the transfer to such post has been recommended by the governing body. Educators who are classified as in excess do not automatically acquire the right to be declared redundant.
For the purpose of this rationalisation, full- or part-time, temporarily employed educators should be treated in the same way as permanently employed educators, except for the following temporarily employed educators:
1. An educator employed temporarily in the place of another educator who is occupying the relevant post but is absent from his/her duties with approval; and
2. an educator who, after a post became vacant during the process of this rationalisation, has been employed in a temporary capacity until the post can be filled by means of the redeployment of an educator who is in excess.

Processes provided for in Resolution 3 in order to enable the finalisation of a redeployment list, must be completed in terms of the relevant provisions of Resolution 3, in cases where such processes have not been finalised.

The particulars of educators in excess shall be included in a provincial redeployment list compiled by a provincial department of education and shall include the following particulars:

The name and PERSAL number of the educator;

rank and level;

qualifications and experience in regard to subject/s and phase;

present education institution;

whether the educator volunteered to be declared in excess; and

preferences with regard to redeployment.

All funded vacant establishment posts which are to be filled at education institutions must be filled in the following manner:
1. All such funded posts that have been approved for filling, must be advertised by a provincial department of education in the appropriate official publication, forthwith upon written request by the education institution concerned. If vacancies have already been advertised in this rationalisation process, the applications of educators specified in Regulation 6 (2) (a) and (b) for such posts will be dealt with as indicated in the following Regulations taking into account that it may entail that the provincial department of education makes the application available to the governing body.
2. Posts must be filled in accordance with the following procedure:
  1. Only persons who have been listed for redeployment by a provincial department of education, including other provincial departments of education than the one in which the vacancy obtains, shall be eligible to apply for Post Level 1 vacancies.
  2. Only serving educators shall be eligible to apply for Post Level 2 and higher post level vacancies.
  3. All applications shall be submitted directly to the governing body of the institution concerned which shall be obliged, in the case of Post Level 1 vacancies, to verify with the relevant provincial departments of education that the names of the applicants for such posts are registered with a provincial department of education for redeployment. The governing body must forward a list of all the applicants to the local provincial department of education. A governing body may request assistance from the local provincial department of education in regard to any or all aspects of the procedure to reach a recommendation, should the need arise.
  4. The governing body must consider the applications, if appropriate, and shortlist candidates for further consideration and if it so decides, interview such candidates. Employee organisations which are members of the relevant Provincial Chambers of the Education Labour Relations Council shall have the right to observer status during the shortlisting and interviewing stages of this process.
  5. subject to paragraph (9), the governing must make a recommendation to the head of the local provincial department of education in terms of section 4 (3) of the Act for the filling of the post.
  6. The head of the provincial department of education and the Member of the Executive Council concerned, shall then consider such recommendation and may only deviate from it if in accordance with section 4 (3) of the Act.
  7. If the governing body, after having regard to the requirements set in terms of section 4 (1) of the Act, decides not to make a recommendation from the applicants for the post, it shall notify the employer in writing forthwith that it is unable to do so and in that notice provide the reasons therefor.
  8. where the governing body duty makes a decision in terms of paragraph (9) or if no candidates who meet the requirements as advertised apply for a post, such a post shall forthwith be re-advertis~d on an open basis, unless the head of the provincial department of education has within 14 days of receiving the notice, commenced appropriate proceedings to challenge the decision.
3. If a person recommended for the filling of a post fails to take up that post, the governing body must—
  1. make a further recommendation from the applicants for the post in accordance with Regulation 6 (2) (e); or
  2. decide not to make a further recommendation from the applicants for the post, and Regulations 6 (2) (9) and (h) shall apply with the changes required by the context.

Once a provincial department of education has established that an educator in excess cannot be redeployed within a province or an educator has volunteered for redeployment to another province, the name and particulars of such an educator must be forwarded to the Department of Education which must include it in a national inter-provincial redeployment list.
An educator who is in excess and in whose place a substitute has been appointed due to the educator's approved absence from work, must come into consideration for redeployment on the same basis as other educators and the contract of the substitute educator terminates on the date of the redeployment of the educator actually occupying the post or the date that the educator actually occupying the post and identified as in excess terminates his or her services, provided that one month's notice of the termination of services is given.
Where the services of a substitute educator referred to in Regulation 8 have in the peat been utilised in such a manner that she or he has been denied the opportunity of being appointed to a substantive post on its merits, the head of a provincial education department may approve that such an educator be treated in the same manner as a permanently employed educator for the purposes of redeployment.
The names of educators in excess who do not apply for vacancies or apply for vacancies where their redeployment is not possible, could be included by provincial departments of education in the applications for advertised posts together with applications referred to in Regulation 6 (2) (a) and (b).
The measures which provide for the costs relating to the transfer of educators within a province to be home by the provincial department and those relating to transfers from one provincial department of education to another to be borne by the receiving department are applicable to educators who are redeployed in terms of these regulations, including transfers where an educator has indicated his or her preference.
Where an educator assumes another post in the process of redeployment, this is not regarded as a break in continuous service for purposes of the application of the Blast In first out" principle.
Requiements for appointment In terms of section 4 (1) of the Act
In addition to other requirements determined by the Minister, the following requirements apply in respect of the appointment of educators:
1. Only persons who have been listed for redeployment by a provincial department of education, shall, during the first round of advertising a vacancy at Post Level 1, be eligible for appointment or transfer to such vacancy.
2. Only serving educators shall be eligible for transfer or promotion to Post Level 2 and higher post level vacancies, during the first round of advertising such vacancies.

General provisions

The Department of Education must determine what information must be kept and provided by education institutions and provincial education departments.
In the event of any conflict existing between a provision of these Regulations and a provision of the Constitution, the Labour Relations Act, 1995 (Act No. 66 of 1995), the SA Schools Act, 1996 (Act No. 84 of 1996), or the Educators' Employment Act, 1994, the provisions of the relevant legislation shall prevail.