- Labour Court sets aside arbitration award after finding commissioner imported peer-reviewed publication requirement not found in OSD instruments, confirming that scientific duties not job titles, determine classification.
- Employees appointed on or before 1 October 2009 are declared entitled to translation to the Occupational Specific Dispensation for scientists, with retrospective effect and back pay plus interest.
- The court holds that internal departmental distinction between research and extension cannot override binding collective agreements and statutory framework under the Natural Scientific Professions Act.
The Johannesburg Labour Court has ruled that agricultural advisors and training officers performing scientific functions must be recognised under the Occupational Specific Dispensation (OSD) for scientists if they were appointed before October 2009.
Acting Judge HM Viljoen set aside an arbitration award that had denied their translation to the OSD salary scales, finding that the commissioner committed a material error of law by importing requirements not found in the governing instruments.
The first applicant was the National Education, Health and Allied Workers Union (NEHAWU) acting on behalf of Thinavhuyo Lesley Mudau and other affected employees. The second applicant was the Public Servants Association acting on behalf of Collen Ntlowana and other affected employees.
The first respondent was Commissioner Martin Sambo, the second respondent was the General Public Service Sector Bargaining Council, and the third respondent was the Department of Agriculture, Rural Development, Land and Environmental Affairs.
The individual applicants are employed by the department as Agricultural Advisors and Agricultural Training Officers.
Background to the dispute
The dispute arose from the implementation of General Public Service Sector Bargaining Council (GPSSBC) Resolution 3 of 2009, which introduced the Occupational Specific Dispensation for scientists in the public service.
The employees hold degrees in agricultural science, and many are registered under the Natural Scientific Professions Act. Their uncontested evidence showed that they conduct literature reviews, interpret laboratory analyses, design and execute demonstration trials, calculate fertiliser programmes, identify pests and diseases, and develop technical advisory materials grounded in scientific principles.
Despite this, the department refused to translate them to the OSD for scientists, maintaining that their posts were classified as extension and training roles rather than research posts. On 17 May 2021, Commissioner Sambo dismissed their unfair labour practice claim.
The applicants’ arguments
The unions argued that the employees perform scientific work as defined in Resolution 3 and its implementation framework. They submitted that the instruments refer to functions such as research, assessment, evaluation, development and innovation.
They contended that the commissioner erred by importing a requirement that scientists must generate new knowledge and publish in peer-reviewed journals, a requirement not found in the text.
They further argued that the factual evidence describing the scientific nature of their duties was not challenged and therefore had to be accepted.
The department’s arguments
The department did not dispute what the employees actually do. Instead, it argued that a scientist under the OSD must generate new knowledge and publish in peer-reviewed journals.
It relied on an internal distinction between research and extension, contending that extension officers merely apply or convey knowledge and therefore fall outside the occupational category.
Judge Viljoen held that the commissioner had introduced a requirement that does not appear in the governing instruments. “Notably, none of these instruments requires the generation of peer-reviewed publications or the creation of new scientific knowledge as a prerequisite for falling within the occupational category of ‘Scientist,” Judge Viljoen stated.
Judge Viljoen emphasised that Annexure B defines the purpose of a scientist as assisting in “research, assessment, evaluation, development, innovation and protection” to ensure sustainability and contribute to a knowledge economy.
“It does not contain the words ‘peer reviewed publication’, ‘academic journals’, or ‘generation of new knowledge’,” Judge Viljoen said.
The court found that the commissioner “misconceived the nature of the enquiry by testing the Applicants’ duties against a witness’s subjective opinion rather than the text of the OSD instruments.”
On the undisputed evidence, the employees’ duties corresponded directly with the functional definition in the OSD. Judge Viljoen concluded that the finding that they are not scientists “is therefore not one that a reasonable decision maker could reach.”
Judge Viljoen further stressed the hierarchy of legal instruments, stating that “Annexure B is an administrative directive. It cannot narrow the scope of the OSD created by Resolution 3, nor can it override the statutory definition embedded in the Act.”
Who qualifies for translation
Judge Viljoen carefully distinguished between categories of employees. Those in service on 30 June 2009, or appointed between 1 July 2009 and 1 October 2009, fall within the once-off translation provisions and are entitled to placement in the Occupational Specific Dispensation for scientists even if they were not registered at the time.
Employees appointed after 1 October 2009 fall outside that transitional dispensation. For them, statutory registration at the time of appointment was required. Those applicants, therefore, do not qualify for retrospective translation.
Judge Viljoen substituted the arbitration award and ordered the department to translate qualifying employees, calculate the difference between what they were paid and what they should have been paid under the OSD for scientists, and pay the arrears within 90 days, with interest calculated from 17 May 2021.
There was no order as to costs.
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