Public Service Amendment Bill: deliberations

Meeting report

PUBLIC SERVICE AND ADMINSTRATION PORTFOLIO COMMITTEE
30 May 2007
PUBLIC SERVICE AMENDMENT BILL: DELIBERATIONS

Chairperson: Mr P Gomomo (ANC)

Relevant Documents:
Version 2: Bill Incorporating Proposed Amendments
Portfolio Committee Proposed Amendments to Bill

SUMMARY
The Department presented the proposed amendments to the Committee. It noted that the State Law Advisers had prepared the format of the amendments after the department had consulted the relevant stakeholders.

The State Law Advisor noted only the most recent changes to the wording. In the Long Title, technical changes had been made. “Agency: was replaced with “component”. More issues were included in the long title. It was clarified that parliament enacted laws but the President signed them. Clause 1 reflected changes of the word “agency” to “component”, included a definition of “government component” and a new definition of “functionary". Clauses 4, 5, 7 and 9 reflected these changes of a technical nature. Clause 2 was changed to reflect the proposals on the determination of conditions of service, which would be done by a committee of Ministers, and defined and expanded upon the concept. If sector Acts were in contradiction with the Public Service Act then the former would prevail. The scope of the new Section 2(2B) was explained. Clause 3 had been changed to reflect the unions’ request for greater stakeholder participation. It was noted that the consultative or advisory bodies would not undermine current structures. Clarity was given on the power of the Minister to make regulations and determinations. Clause 5 repealed Section 3B of the principal Act as its contents had been moved to the new Section 12.

Clause 6 reflected practical changes as the South African Management Development Institute was referred to now by function instead of by name, as its name would shortly change. Clause 8 now reflected a new subclause to state that an employee failing to disclose information wilfully or negligently was guilty of an offence. Clause 10 had been altered by the insertion of new subparagraphs 7A(1) and 7A (3). These were tabled and explained. In addition a new Section 7B(1) was introduced to deal with the specialised service delivery unit, and a new 7B(1)(b) stated that the Minister must approve requests if they were consistent with the provisions of the Constitution, the Act and any other applicable law.
 
MINUTES
Public Service Amendment Bill: Explanations by Department of Public Service and Administration (DPSA)
Adv E van Schoor, Chief Director: Legal Services, Department of Public Service and Administration, took the Committee through the proposed changes to certain clauses of the Bill.

Title and Preamble
It was noted that the long title of the Bill reflected recent technical changes, which included the replacing of the words “agency” with “components”, and the addition of “specialised service delivery unit" to certain of the references to components. The description also addressed more issues on the proposed government components and units, especially the appointments of the heads of the components. It also now included reference to a revision of the provisions regarding outside remunerative work by employees.

Ms L Maloney (ANC) needed clarity on the replacement of “President” with “Parliament” in the long title. She asked which was correct, as the Parliament passed Bills, but they would need to be signed by the President. She wanted to know if this would change, and who would then sign Government Gazettes and related documents.

Adv van Schoor clarified that the President had promulgated the Public Service Act in 1994 as a special power in terms of the interim constitution of the time. She said that the amendment was in order, because it was parliament that enacted laws, and the President signed them off. In the event that the enacted legislation was unconstitutional, the President then would bring it back to Parliament for review, as had happened in the past. The President was still responsible for signing the legislation and Government Gazettes.

Clause 1
The definitions clause reflected the changes of the word “agency” to “component”. A new definition was included for “government component”. A new definition of “functionary" had been inserted, to align this term with the principal Act. These changes had arisen at the behest of the Public Service Commission, which was concerned about the unclear definitions.

Clauses 4, 5 and 7- 9
Adv van Schoor informed the Committee that these clauses reflected the above-mentioned amendments of “agency” to “component” and would thus not be considered in any greater detail.
 
Clause 2
This clause was changed to reflect the proposals on the determination of conditions of service, which would be done by a committee of Ministers. The section also redefined “conditions of service”, the membership of the committee of Ministers, and further proposed the deletion of subsections (3) and (5) of Section 2 of the principal Act of 1994. The Clause also dealt with employment issues within the sector, such as what would happen when the sector employment Acts were in contradiction with the Public Service Act. Examples were cited as included the legislation governing the S A Police Service (SAPS). The sector Acts would prevail.

Ms N Ntlake (ANC) enquired about the new Section 2(2B), which addressed the conditions of service of heads of departments, as appointed in terms of the Constitution. Ms Maloney wondered if there were any other heads of departments who were appointed outside the scope of the Constitution.

Adv van Schoor reminded the committee that only four heads of departments were appointed within the scope of the Constitution, being the SAPS National Commissioner, the Head of the National Intelligence Agency (NIA), the Head of Secret Service and the Head of Academy of Intelligence.

Mr N Gcwabaza (ANC) wanted clarity on the new Section 2(2A) regarding the determination of the conditions of service. He wanted to know what the relationship was between this Act and sectoral Acts, such as those dealing with education, and what the implication would be for the sectors when this Bill was passed.

Adv van Schoor responded that the sector laws were taken into account, but if there were any clashes then the sector laws would prevail. The committee of Ministers would, on application, give permission for these laws to prevail on matters of conditions of service.

Clause 3
Adv van Schoor explained that this clause, which would substitute Section 3 of the principal Act,  dealt with the functions of the Minister of Public Service and Administration (MPSA) and executive authority. In particular, the proposed Section 3(3)(a) allowed the MPSA to establish advisory bodies consisting of prescribed employees or other persons, as advisory or consultative bodies. Subparagraph (3)(b) was inserted after COSATU requested that broader consultation take place, and organised labour and other stakeholders would participate in such bodies where appropriate.

Adv van Schoor requested the Committee to retain the wording in subparagraph (4)(b)(ii), which dealt with the transference of powers from one department to another.

Mr N Gcwabaza (ANC) had a question on subsection (3)(b). He wanted to know if the inserted section that allowed the Minister to establish consultative or advisory bodies would not undermine the current processes of consultation, like the NEDLAC forum, and what would happen to these processes.

Adv E van Schoor responded that subsection (3)(b) was in relation to policy issues with regards to the Act, and would not affect labour policy. NEDLAC and other bodies would still be consulted.

Mr Gcwabaza also asked for clarity on the new Section 3(2) and new 3(5)a), which permitted the Minister to make regulations or determinations. He wanted to find out if these were not repetitions by error.

Adv van Schoor said that 3(2) was not the same as (5)(a) in that the latter gave the Minister powers to make such determinations on conditions of service for specific employees, including salary scales, according to this Act. Subsection (2) was broader, and dealt with issues that related to other sectors also. This was subject to the Labour Relations Act and any collective agreements, and care must be taken not to contradict those.

Ms L Maloney (ANC) asked if this Bill would be sent to the bargaining council or if it had been sent already. Members of this Committee would not be approaching the council.

Adv van Schoor said that there was no legal requirement for the Bill to be sent to the bargaining council. This would happen only if there were proposed amendments to the Act in future.

Clause 5: Repeal of Section 3B of principal Act.
Adv van Schoor noted that Section 3B of the principal Act was repealed. The content of this section had been moved to the new section 12 (set out in Clause 17).

Clause 6
This clause dealt with the South African Management Development Institute. The Department had proposed a name change of the Institute, but this was not a simple matter, as it could not be done by proclamation. Therefore some way had to be found to identify the Institute by reference to its functions, rather than by its name. The new wording was tabled.

Clause 8
Adv van Schoor pointed out that Section 6 of the principal Act was being replaced. A political functionary who wilfully or negligently failed to disclose information or furnish documents was to be guilty of an offence and a sanction was provided. The word “person” as noted at present should be replaced with the word “employee”

Clause 10: Insertion of new sections 7A and 7B
Ms van Schoor noted that some changes had been made to the wording of Clause 7A. A new paragraph had been added as 7A(1) to provide that an executive authority could only request an establishment of a government component if the prescribed feasibility study was conducted and the finding of such a study recommended the establishment of the component.

The previous wording of 7A(1) had then been renumbered as 7A(2)

Section 7A (3) had also been added to note that no power, duty or function regarding realisation of a right under Sections 26 to 29 of the Constitution could be assigned or delegated. This related to transfer from national to provincial level.

The rest of the changes to this clause were of a technical nature.

A new Section (7B) was introduced, to deal with specialised service delivery unit within department. The previous version of Section 7B(1) would be renumbered as 7B(1)(a). A new paragraph would be inserted as 7B(1)(b). This provided that a Premier or MEC would have to make requests to the Minister, and if the request was consistent with the provisions of the Constitution, the Act and any other applicable law, then the Minister had to be give effect to the request.

The meeting was adjourned.