Public Service Act Amendment Bill: Department's response to public hearings

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Meeting Summary

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Meeting report

23 May 2007

Mr P Gomomo (ANC)

Documents handed out:
Bill incorporating proposed amendments resulting from bilateral talks

The Department of Public Service and Administration indicated that the Public Service Act Amendment Bill had been discussed in public hearings and that the Department had also held a number of discussions with stakeholders to try to reach some acceptable compromises on the wording of the Bill. The Department tabled a new version of the Bill and explained the reasons for and the effect of the various amendments now proposed. Two definitions were changed in clause 1. In Clause 2 it was agreed that a committee of Ministers should consider certain conditions of service and approve them before they were implemented. A new Section 2B would be inserted into the Act to deal with the appointment of heads of departments. Clause e had been amended to provide for stakeholder representation on advisory bodies. Clause 4 related to the establishment of government components. Although the Congress of Trade Unions had requested that the words “under the advice of” instead of “after consultation with”, when referring to the powers to establish, the State Law Advisors indicated that they could not strengthen the wording as requested as this would amount to interfering with the discretion of the provinces. A technical amendment was made to Clause 6 to cater for the imminent name change of a named institution. Clause 7 had been amended to clarify that the Minister could, without derogating from a collective agreement, elucidate or supplement determinations. Clause 8 proposed that willful or grossly negligent failure to provide documents should be criminalised. The provisions relating to retroactive approval of government components had been removed from Clause 9. Clause 10 clarified that government components would be established only after a feasibility study.

Members were generally happy with the proposed amendments, but called for specific comment on the concerns raised into the constitutionality and timing of the Bill, asked whether there was a need for additional definitions, and questioned the content of the consultations that must be held.
Public Service Act Amendment Bill (the Bill): Responses to public hearings and further discussions by Department of Public Service and Administration (DPSA)

Prof Richard Levin, Director General, DPSA, indicated that the Bill had been discussed in public hearings, and thereafter the DPSA had held discussions with a number of stakeholders to address problematic clauses. This meeting would report back on the key issues that had emerged both from the hearing and the discussions. The State Law Advisors (SLA) were thanked for addressing the issues that had arisen.

Adv Empie van Schoor, Chief Director: Legal Services, DPSA, went through the Bill clause by clause.

Clause 1
This clause dealt with definitions. There were two definitions that had now been altered after discussions with the Congress of South African Trade Unions (COSATU) and the Public Service Commission (PSC).

 The words “government agencies” were replaced by “government components”. These changes were highlighted in the document handed out.

The definition of functions had been altered, which related to one particular clause of the Bill.

The rest of the changes were of a technical nature to correct drafting, or to replace all instances of “government agencies” being changed to “government components”.

Clause 2
South African Police Service (SAPS) had raised a particular concern pertaining to the proposed power of the Minister of the DPSA to apply employment practices to sectors, which included the police. The Police Commissioner had proposed that in respect of certain conditions of service, there should be a committee of ministers consisting of the entire sector ministers, as well as Minister of Finance and Minister of DPSA. This committee would consider these conditions of service and approve them before they were implemented. As a result the eventual decision or implementation would still rest with the sector minister and not the Minister of DPSA. The areas of conditions were limited to annual salary adjustments, salary scales or levels, performance bonuses, pay incentives and pension benefits. DPSA thought that it was important to have alignment, as far as possible, between the sectors and the general public service.

SAPS had raised a concern that the National Commissioner of Police was appointed in terms of the Constitution, not in terms of the Public Service Act. That also applied to the all the heads of Intelligence Services. SAPS wanted clarification on that issue and suggested that a clause be inserted to deal with the appointment of heads of departments. DPSA agreed, and had suggested that a new Section 2B be inserted into the principal Act, which essentially stated that the Public Service Act would only apply to those heads of departments if the sector’s subject matter was not provided for in their own law governing the employment or their employment contracts. She pointed out that in the past there had been difficult situations where the DPSA had asked what conditions of service were applicable to heads of departments who had been appointed in terms of other legislation.

Clause 3
Adv van Schoor stated that Clause 3 made provision for the Minister to appoint advisory bodies. COSATU and PSC raised the issue of stakeholder representation on these bodies. DPSA then amended the Clause to the wording now presented, to address this concern. The clause now stated that provision must be made in regulation for stakeholder representation, specifically organised labour, on these advisory bodies.

She also pointed out that “National Government Agencies” had been changed to “National Government Components”.

She indicated that COSATU’s main concern in proposing the changes was that the Minister of DPSA should not be allowed to undermine collective bargaining. Even though there was a later clause that said all Acts, in terms of the Public Service Act, must be subject to collective agreement, COSATU had indicated its concern about new matters, where there was not an existing collective agreement. She clarified that in terms of the Labour Relations Act, they would have to go to collective bargaining if it was a matter that required negotiations with the Department of Labour.

Clause 4
Adv van Schoor said that this clause related to government components and the way they were established. In the current Act and even the first proposed amendment, the Premier was not required to obtain the permission of the Minister of DPSA before he or she could establish provincial departments. COSATU had raised concerns that this might lead to the proliferation of government components, pointing out that the President gave effect to the requests of the Premier, only being able to refuse if the requests were unconstitutional or contrary to the Public Service Act. Consequently, COSATU requested that DPSA use the words “under the advice of” instead of “after consultation with”.

However, Adv van Schoor noted that the DPSA had been advised by the State Law Advisors (SLA) that it should not change this wording, in view of a 1999 Constitutional court case on the issue, as this would amount to infringing on the powers of the provinces.

Mr H Smuts, Principal State Law Advisor, Office of the SLA, added that the words “on the advice of” could be interpreted as taking away the Premier’s discretion in the matter and that the words “after consultation with” were more appropriate.

Adv van Schoor pointed to the replacement, as discussed before, of  agency” with “component”.

Clause 6
Adv van Schoor noted that Clause 6 made reference to South African Management Development Institute (SAMDI). There was the possibility of a name change to SAMDI. DPSA intended to use neutral words, and could subsequently incorporate a specific reference to the institute, under its new name, once this was known, by amending the Schedule to the Public Service Act. This was the route followed in the case of other departments. If the name of SAMDI were to appear in the Act, then this would need an amendment to the Act.

Clause 7
The proposed amendments to Clause 7 resulted from discussions with COSATU, which had raised concerns  in respect of deemed collective agreements. The Bill stated that all collective agreements were deemed to be determinations of the Minister, and a subsequent clause allowed the Minister to supplement or elucidate this deemed determination. COSATU was concerned that these determinations could derogate from the collective bargaining process, as well as the content of the collective agreement.

Adv van Schoor noted that from a practical point of view DPSA, in implementing the collective agreements, had to make some arrangements. These would be simply for the purpose of proper implementation, as well as for elucidating and supplementing determinations.

COSATU had also suggested that instead of the term, “termination” the term “directive” should be used.

Clause 8
Adv van Schoor indicated that the amendments proposed here resulted from the broader discussions with PSC in respect of enhancing compliance with the Public Service Act, and the debate regarding the power of the Minister of DPSA to conduct investigations.

When the Minister of DPSA requested information, in terms of the Act, and it was not given, the current penalty was limited to charging the person not providing the requested information with misconduct. DPSA therefore proposed that failure to send documents or information at the request of the Minister be regarded as a criminal offence, if such failure was willful or grossly negligent.

Adv van Schoor highlighted that there were two clauses that dealt with access to information, and the maximum penalty would be a prison term not exceeding 12 months. She said that no fine would be named in the Bill, as that would be determined, and changed from time to time as necessary, by the Adjustment of Fines Act. The fine was currently a maximum of R20 000.

Clause 9
Adv van Schoor said that there were several amendments in the Bill that pertained to the proposed government components.

COSATU had raised concerns over the existing power in the Act, also now proposed in Amendment Bill, that the President could establish a department retrospectively. COSATU were concerned that a department could establish government components, then approach the President to approve it. He would have difficulty in not sanctioning the components if they were already operational. This would lead to all kinds of budgetary implications. DPSA agreed that this provision should be omitted from the Bill.

Clause 10
Adv van Schoor noted that the “government agency” would, as already indicated, change to “government component” wherever it appeared.

Government components would be established only after a feasibility study, which would be prescribed by regulation, which recommended the establishment of a component. She added that the Bill listed the kinds of functions that these components may have and functions that may be allocated or transferred in terms of Section 3. Essentially the kinds of power and functions they may have were original powers allocated to the components by the Minister, as well as assigned powers, in terms of the Public Service Act, and delegated powers.

Adv van Schoor explained the most important difference between the “government agency” and “government component”. She said that these components may not deliver any socio-economic service - namely health, education, children’s matters, water, or food. COSATU felt that these core services should be delivered by government departments and not by government components.

Mr K Minnie (DA) noted that Public Service Commission, the previous week, had raised the issue that this Bill might be premature because investigations into the Chapter 9 and 10 institutions were still ongoing by the Committee being chaired by Prof. Asmal. He added that the  Independent Municipal Allied Trade Union (IMATU) had also raised concerns about the constitutionality of the Bill. He asked if these concerns had been taken into account.

The Chairperson asked if he would like the issues and the Department’s response to each to be specifically highlighted, and Mr Minnie confirmed that this was exactly what he was requesting.

Ms U Roopnarain (IFP) pointed out that the term “component” kept recurring in the Bill. She asked if a definition of this term was needed. She also asked if a definition was needed for the term “specialised service delivery unit”.

Ms van Schoor said that the definition of “component” was adequately dealt with in the relevant clauses of the Bill, Clause 7 (a), which described the attributes of the components.

With regard to “specialised service delivery unit”, Ms van Schoor explained that this wording appeared only in clause 7(b). DPSA did not feel it was necessary to define this as it was not used elsewhere and because its attributes were adequately described in this clause.

Mr K Khumalo (ANC) pointed out that he had concerns with the words “after consultation with”, as he was worried about the measure of control. He wanted to know what the content of the consultation would be.

Mr Smuts responded that theoretically “after consultation with” was not as strong as “in consultation with”. He said that it obliged the Premier to consult with Ministers. However, it would not be wise for the Premier, for example, not to follow the Minister of Finance’s advice on a matter because the Minister of Finance was ultimately in control of the money. In view of the Constitutional Court ruling, the SLA suggested that “after consultation with” be used.

Ms van Schoor added that DPSA proposed one important control measure, which was that before a Premier could establish any government component, a feasibility study must be conducted, and the outcome of that study must specifically recommend the establishment of the component. She thought that that was sufficient control.

The Chairperson mentioned an issue that had arisen with the Premier of the Eastern Cape. After the government decided to investigate what was happening in that province, the Premier had appointed another commission, without consulting the Minister, instead of looking at the recommendations that were made by the government. In this instance clearly the Premier was given recommendations that he did not comply with. The Chairperson said that he was happy with the use of the words relating to the feasibility study and believed that this would be sufficient.

The meeting was adjourned.



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