Employment of educators act 76
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Employment of educators act 76
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The labour rights of educators in South Africa and Germany and quality education: An exploratory comparison. Die aandrang op toegang tot onderwys vir almal soos vergestalt in die Education for All-beweging van die s het deur die jare verander in 'n aandrang op toegang vir almal tot kwaliteit basiese onderwys soos beoog in die Dakar Framework for Action Education for All: Meeting Our Collective Commitments.
In Suid-Afrika het opvoeders volle eenvormige toegang tot die volledige reeks arbeidsregte in die Grondwet en ander wetgewing terwyl daar in Duitsland twee stelsels arbeidsregte vir opvoeders geld. Baie navorsing is nog nodig oor die verhouding tussen opvoeders se arbeidsregte en die gebruik en misbruik daarvan en die kwaliteit van onderwys en ons voer aan dat beperkings op fundamentele arbeidsregte en volle en onbeperkte toegang tot arbeidsregte sonder om enige ander faktore rakende kwaliteit-onderwys in ag te neem beide problematies is.
Education for All EFA has been the focus of international education agencies for the past two decades. It involved providing education to everyone of appropriate age by , thereby satisfying everyone's right to access to education. The challenge has been to simultaneously maintain and enhance the quality of education in schools across the globe.
Howie 1 says that, after decades of deprivation in many contexts, it is important to not only discuss and reflect on how achievable quality education for all is, but also, what the cost is of not doing so. The concern about the quality of education has overtaken concerns about access to education and can be accompanied by questions about the status, rights, responsibilities and behaviour of teachers.
This document committed governments to achieving quality basic education for all by and represents both an up scaling of the Jomtien document the word "quality" was added and a down scaling it is now "basic" education for all.
Studies to measure the achievement of the goals of EFA and the Framework abound at both the international and national levels. ANA is a South Africa only national assessment of Grade 3 and Grade 6 learners' performance in language, literacy, numeracy and mathematics. In light of the above it is not surprising that there is a wide-spread effort to ensure the provision of quality education to all children.
Because many role players impact the quality of education, one should guard against assuming a very direct causal relationship between the work of educators and the performance of learners. However, one may identify conditions that are more or less important beneficial for the performance of teachers in schools.
These conditions include the following:. The basis for any description of the role of teachers is a common understanding of their professionalism and of the expectations of, and the necessary conditions for their work as educators of the youth.
Professionalism involves the behaviour, values and convictions shared by teachers. The understanding of teachers' professionalism must also have an impact on teacher education. Of vital importance regarding teacher education are issues such as how one finds and attracts the most gifted future teachers, how the selection processes at universities must be organised to achieve the aim of finding the best human capital for the profession and how the content of teacher training as well as the practical component of university preparation for the teaching profession reflects an understanding of teachers' professionalism.
The professionalism of teachers must be supported by the definition of teachers' status ie the legal rules describing the concrete rights and duties of teachers particularly in regard to their employment conditions. When looking at the concrete obligations of teachers one may ask if teachers are primarily "ordinary" employees with all the rights and duties laid down in normal labour law or whether there should be any restrictions, enhancements or embellishments of their labour rights because of their particular role and function as educators of the youth in a public school system.
These three ideas also suggest a certain sequential developmental dimension regarding teachers' professionalism: 6 An awareness of their professionalism, efforts to provide suitable teacher education including further education and professional development and the creation of conditions of service to support teachers to perform their primary task namely the education of learners optimally.
Clause 5 of the Recommendation provides that "[w]orking conditions for teachers should be such as will best promote effective learning and enable teachers to concentrate on their profession" while clause 79 provides that the participation of teachers in social and public life should be encouraged in the interests of the teacher's personal development, of the education service and of society as a whole.
These clauses would seem to suggest that the drafters of the Recommendation linked teacher performance and their labour rights. In the foregoing paragraphs we referred to increasing international insistence on the provision of quality education to all.
We pointed out that teachers are assumed to play a vital role in the provision of education and that they seem to require access to certain labour rights in order to perform their task satisfactorily. The question then arose as to whether the nature of educators' work is such that it could justify measures to curtail or even withdraw some or all of their labour rights should they not contribute adequately to the provision of quality education or should they abuse their labour rights.
The above are the questions that we will examine in this article. In the paragraphs below we will provide an international perspective on some of the issues by referring to a number of provisions of the Recommendation, followed by an examination first of the situation as it obtains in South Africa and second of the status quo in Germany. We decided to compare South Africa and Germany for a number of reasons, among others the facts that:.
In conclusion we will present tentative answers to our questions. Education International 8 points out that the Recommendation is the only international standard applicable:. The Recommendation consists of clauses that set standards particularly in the following fields: Preparation for the profession, further education for teachers, employment and career, entry into the teaching profession, advancement and promotion, security of tenure, disciplinary procedures related to breaches of professional conduct, the rights and responsibilities of teachers, conditions for effective teaching and learning, teachers' salaries, and teacher shortages.
The Recommendation does not necessarily imply that teachers move hierarchically from the recognition of one category of rights to the next until they enjoy a complete set of working conditions and a status that "will best promote effective learning and enable teachers to concentrate on their professional tasks". The notion that teachers may have to earn the rights implied in the Recommendation sequentially may fly in the face of entitlement in terms of fundamental rights paradigms but one cannot escape the possibility that teachers might gain access to rights which they are not ready to exercise.
In South Africa all teachers including those that had been disadvantaged before received the full array of labour rights referred to in the Recommendation in a single package in the wake of the transformation: Labour rights, rights to suitable professional preparation, the right to be heard, the right to professional development. The question arises as to whether such allocation has contributed to the delivery of quality education or whether the absence of some links in a chain has not negatively affected their service delivery.
It bears repeating that the link between quality education and the labour rights and status of teachers is not to be viewed naively and in an unsophisticated manner. Even though the Recommendation puts forward compelling arguments in favour of more rights for the majority of teachers in the world, it is still largely unimplemented in many corners of the globe and it would be wrong to suggest that all teachers across the world have access to all the rights, but the nexus between teachers' rights and educational quality seems firm and questions about the feasibility and viability of unbridled rights that may impair service delivery seem apposite.
In this contribution we will focus on teachers' labour rights. We will begin our discussion by examining the position in South Africa.
The situation is South Africa is at the same time unique and new. The majority of teachers were deprived of many rights under the previous regime and all teachers instantaneously got access to all the fundamental rights entrenched in the Bill of Rights in chapter 2 of the Constitution, including the labour rights. Section 23 of the Constitution provides that:. It should be noted that the Constitution refers to "workers" and not "employees". Teachers are therefore "workers" before the law and the decision to be classified as such was a conscious one and also displayed solidarity with the workers with whom the biggest South African teachers' union the South African Democratic Teachers' Union SADTU is in alliance.
This situation where a trade union is part of government is unique and contradicts in many ways the notion that trade unions should primarily guard and promote their members' rights and interests. The fact that teachers are at the same time employers and rulers is not without problems. For one thing, the governing party seems very hesitant to act against teachers who do not perform their duties as expected for fear of reprisals at the ballot box.
One result is that protracted strikes protected and unprotected are the order of the day and that the interests of children often play second fiddle to those of the teachers. There is compelling anecdotal and other evidence that SADTU in particular is playing a disruptive role in schools predominantly serving poor communities. This includes fabricating rumours and charges of nepotism, financial and other mismanagement, racism and corruption.
If all of these allegations are true, it is clear that teachers' labour rights, if abused, may have an adverse effect on the quality of education and also on the management of educational institutions. Although it is possible to limit teachers' labour rights in light of, and in accordance with section 36 of the Constitution and other legal principles, it would take exceptionally courageous political leadership to do so.
In South Africa one could argue that initial teacher education in South Africa is not in place yet as the Policy on the Minimum Requirements for Teacher Education Qualifications 15 has just been published. It provides "a basis for the construction of core curricula for initial teacher education, as well as for Continuing Professional Development CPD programmes 16 that accredited institutions must use in order to develop their programmes leading to teacher education qualifications.
The tone of the Policy suggests that the teacher education contemplated must still happen and that teachers' rights to such education exist but have not been given full expression as yet.
It would seem anomalous then to award teachers the right to continuing professional development, which is by nature focused on honing already-acquired competencies, skills, knowledge and values as a teacher, at the time of the release of this future-oriented statement on the rights of educators. The Policy also intimates that the right to initial teacher education precedes the right to continuing education and that continuing education in the form of re-skilling should normally not be used a way to rectify dysfunctional or ineffective training.
The issue was again debated comprehensively at the national Teacher Development Summit held from 29 June to 2 July The foregoing paragraphs suggest therefore that there may be grounds for limiting teachers' rights including their labour rights on the basis of the current stage of development of teaching as a profession. The argument departs from the Recommendation 's separation of four types of teachers' rights, namely those regarding initial teacher education, professional registration, professional development and participation in negotiations through unions.
The above paragraphs propose that one needs to examine the labour rights of teachers more closely in light of teaching's incomplete compliance with the characteristics of a profession as set out in the Recommendation and in light of the poor performance of the South African education system. The graph in Figure 1 depicts the minimum standards for primary teaching and number of teachers who met them in Sub-Saharan Africa in South Africa has the second highest number of teachers meeting ISCED in Sub-Saharan Africa and expectations that the national education system will perform well in comparison with other countries in the region are therefore justified.
We will now proceed to a discussion of South African teachers' labour rights. The Labour Relations Act 18 LRA was promulgated among others to give effect to the public international law obligations of the Republic relating to labour relations, 19 to give effect to section 23 of the Constitution; to promote and facilitate collective bargaining at the workplace and at sectoral level; to promote employee participation in decision-making through the establishment of workplace forums; and to provide simple procedures for the resolution of labour disputes through statutory conciliation, mediation and arbitration for which purpose the Commission for Conciliation, Mediation and Arbitration CCMA is established , and through independent alternative dispute resolution services accredited for that purpose.
The LRA specifically protects employees against unfair dismissals. Teachers therefore have access to collective bargaining, to participation in decision making and to conciliation, mediation and arbitration for the resolution of labour disputes. The agreements adopted by this council are binding on employers and employees. The Employment of Educators Act 22 EEA provides for the employment of educators by the State, for the regulation of their conditions of service, for discipline, for retirement and for the discharge of educators.
All of these create enforceable rights and obligations of teachers. Section 2 of the EEA provides that the EEA applies to the employment of educators at a public schools; b further education and training institutions; c departmental offices; and d adult basic education centres.
Section 3 spells out who the employers of specific categories of employees are for all purposes of employment as well as for the purposes of determining the salaries and other conditions of service of educators and for the purposes of creating posts.
Chapter 3 of the EEA deals with the appointments, promotions and transfers of educators and section 6 provides for the powers of employers. Section 6 1 b provides that the appointment, transfer or promotion of an educator in the service of a provincial department shall be made by the provincial Head of Department HoD.
Section 3 a provides that such appointment, promotion or transfer may only be made on the recommendation of the governing body SGB of the public school. Section 3 b contains instructions with which governing bodies should comply when considering applications with a view to preparing recommendations for the employer. Section 6 3 c provides that the governing body must submit, in order of preference to the HoD, a list of - i at least three names of recommended candidates; or ii fewer than three candidates in consultation with the HoD.
Sections 6 3 d to g outline the responsibilities of the HoD in considering and dealing with the recommendations contemplated in sections 6 3 a to c. Section 3 f provides that, despite the order of preference in paragraph c and subject to paragraph d , the HoD may appoint any suitable candidate on the list. Section 3 g iii provides that, when an HoD declines a governing body recommendation he or she must, despite section 6 3 a , appoint a suitable candidate temporarily or re-advertise the post.
The courts do not seem to view the power as a carte blanche given to HoDs. The HoD rejected the recommendation and appointed another candidate in the post. The school and its SGB successfully obtained the overturning of that decision by the court and the respondents appealed for leave to appeal the overturning. Without making a finding Bertelsmann J 26 stated the following:. It might possibly be argued But where the difference in the respective suitability for the post is, in the opinion of an interviewing committee which honestly applies the agreed procedure, as substantial as is the case here, neither the Constitution nor the statute or the equity plan [in terms of the Employment Equity Act 55 of ] demand the preferring of the candidate who belongs to a group which was previously discriminated against.
But the Constitution also entrenches the right to proper education and provides specific protection for children. Section 28 2 of the Constitution reads as follows:.
As important as the rights of educators, and in particular those belonging to previously disadvantaged communities are, the paramountcy of children's rights and interests must not be overlooked. I am of the view that the first respondent [the HoD of the particular provincial department of education] would not be entitled to substitute his own choice for that of the interviewing committee and the school governing body, but would have to refer the matter back to the interviewing committee and the school governing body with the instruction to apply the law properly.
Bertelsmann J consequently refused the leave to appeal with costs. In this regard Section 33 1 of the Constitution reads as follows: " 1 Everyone has the right to administrative action that is lawful, reasonable and procedurally fair. One other example will suffice to illustrate the protection that teachers enjoy against arbitrary limitations of their labour.
Hurt AJA commented that the assumption that the scope of the discretion of the HoD had been broadened was obviously correct but noted that this did not excuse him from "having to furnish acceptable reasons for his decision".
It is worth noting that the candidates recommended by the SGB and those appointed by the HoD were all white males, a group over-represented in the Western Cape at the respective post levels. When the SGB asked for reasons why their recommendation for deputy-principal had not been appointed, the Department responded as follows in a letter dated 4 December
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employment of educators act 76 of 1998
The labour rights of educators in South Africa and Germany and quality education: An exploratory comparison. Die aandrang op toegang tot onderwys vir almal soos vergestalt in die Education for All-beweging van die s het deur die jare verander in 'n aandrang op toegang vir almal tot kwaliteit basiese onderwys soos beoog in die Dakar Framework for Action Education for All: Meeting Our Collective Commitments. In Suid-Afrika het opvoeders volle eenvormige toegang tot die volledige reeks arbeidsregte in die Grondwet en ander wetgewing terwyl daar in Duitsland twee stelsels arbeidsregte vir opvoeders geld. Baie navorsing is nog nodig oor die verhouding tussen opvoeders se arbeidsregte en die gebruik en misbruik daarvan en die kwaliteit van onderwys en ons voer aan dat beperkings op fundamentele arbeidsregte en volle en onbeperkte toegang tot arbeidsregte sonder om enige ander faktore rakende kwaliteit-onderwys in ag te neem beide problematies is. Education for All EFA has been the focus of international education agencies for the past two decades. It involved providing education to everyone of appropriate age by , thereby satisfying everyone's right to access to education.
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