Commission for Conciliation, Mediation and Arbitration responses to Forensic Audit Report

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Labour

30 August 2010
Chairperson: Ms L Yengeni (ANC)
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Meeting Summary

The Committee had previously heard from part-time commissioners, whistleblowers and AGSA about the situation that had led to the Forensic Audit of the Commission for Conciliation, Mediation and Arbitration (CCMA). It also wished to obtain the comments of the Governing Body of the CCMA, so that it could obtain a full picture. The Committee stressed that the Governing Body had a responsibility to ensure that the CCMA adhered to government and CCMA policies, did not misuse taxpayer money, and took steps to correct any irregularities.

The Governing Body (GB) presented its full explanation in respect of each of the issues highlighted in the audit report. It welcomed the engagement with the Committee. Some of the allegations had already been identified by the GB itself prior to being reported on by AGSA. It had also put measures in place to address every other weakness identified, taking both correction action and ensuring that it would not recur, and all matters were due to be finalised before the next audit. Its Finance and Risk Sub-Committee was looking at the CCMA’s corporate governance, had compiled a list detailing all areas needing the attention of the executive management, and required report-backs on how matters were being addressed.

The GB conceded that certain of the findings were quite justifiable, and explained what corrective action had been taken. These included cancellation of a contract where the supplier did not comply with the Black Economic Empowerment requirements, correction of an over-payment to a service provider, and creation of a decision register to track that contracts were not routinely extended. The policies had been changed to ensure that suppliers could not be paid in batches, even though each batch had been separately approved. GB also conceded that it had incorrectly thought that part-time commissioners did not need to have PAYE deducted, had obtained a ruling from the South African Revenue Services, was reclaiming the money and should have finalised this within 12 months. All part-time commissioners were now being taxed as employees. Late payments to the Provident Fund arose through cash-flow problems, which had been identified some months previously, but extra allocations from the Department of Labour were delayed. Salary advances were made to a part-time commissioner incorrectly, and both the commissioner and the staff member were disciplined for flouting the procedures.

The GB also commented that although in some instances it held a different interpretation from AGSA, it had nonetheless deferred to AGSA. However, it stressed that if some documentation had been provided to AGSA, or explanations heard, then some findings may have changed.  AGSA had thought that a service provider was paid despite no discernible services having been provided, but the GB felt that good advice had been given. The GB explained that commuting costs for commissioners in fact amounted to less than the relocation costs would have done. Where travel costs were paid to commissioners, this too was done for a specific reason, to allow commissioners to work in two offices. Quotations from a single service provider should have been recorded as a quotation from a sole service provider in the field, and similarly a failure to accept the lowest quotation should have been recorded as linked to the failure of that provider to provide a tax certificate, and price fluctuations should have been recorded as linked to exchange rates.  The GB now accepted that payments to one service provider followed incorrect procedure, but were not in fact splitting of amounts. The opening of a separate account, although incorrect from a procedural point of view, was done for a specific reason. Although one of the VAT numbers had been incorrectly recorded, the GB pointed out that AGSA had not specifically asked to see all VAT certificates.

AGSA was given the opportunity to respond to the matters, and explained its position, particularly in regard to the documentation available and the point at which it commenced writing the report.

Members questioned at some length why the GB had referred to AGSA’s Report as containing “allegations”, and whether it accepted that AGSA had made factual findings. Members were eventually satisfied that the GB accepted the findings, and had taken steps to address them. Questions were asked around the travel costs, the SARS liability, late payments by the Department of Labour and how this had occurred, given that the Department was represented on the Board. Members also questioned the payments of R600 000 to one supplier, and were surprised that the advances to a staff member had been approved and were not picked up sooner. Members wanted to ensure that all parties were in agreement on what needed to be done. They also questioned the difference in the figures of irregular payments, as produced by CCMA and AGSA, and asked whether this amounted to an actual loss. The Committee noted that it would make an assessment of the various comments, would decide when it wished to call the roleplayers back together, and would also need to hear CCMA’s explanation why the whistleblowers had been dismissed.

Meeting report

Commission for Conciliation, Mediation and Arbitration (CCMA) Governing Body comment on Auditor-General’s Forensic Report
Chairperson’s Opening Remarks
The Chairperson noted apologies from the Chairperson of the Governing Body of the Commission for Conciliation, Mediation and Arbitration (CCMA), who had requested that the Committee should try to reschedule this meeting to allow for the presence of the Chairperson. This, however, had not been possible.

She noted that the Committee had already been briefed by the Auditor General South Africa (AGSA) on the Forensic Audit that was done on the CCMA. The Committee had also heard comments from part-time commissioners and whistleblowers. Members had believed that the Committee would not be in a position to respond until it had also heard the comments of the Governing Body (GB), and had held a meeting at which all parties were present together. This meeting would thus hear the responses from the GB on the findings in the Forensic Audit Report.

She noted that although Members had read the Forensic Report, the GB should explain to the Committee the issues raised. Although it may well desire to downplay the findings, it must be remembered that the CCMA was an entity of government, which was bound to comply with rules and regulations, including the National Treasury (NT) regulations, the Public Finance Management Act (PFMA) and the Constitution. Irregularities in the end amounted to misuse of taxpayer’s money, and it was the responsibility of this Committee to check where things may have gone wrong. The Governing Body itself had a responsibility to ensure that everything and everybody in management was adhering to government and CCMA policies. It was clear from the report that these policies were flouted.

The Committee thus needed to hear from the CCMA about its challenges, and how it intended to redress the situation. The Committee Secretary had compiled a summary of the challenges identified by the CCMA commissioners, which would be given to the GB. The Forensic Report was the result of issues raised by the whistleblowers.

The Chairperson added that there was a general perception that whistleblowers were not being protected, and at another meeting the CCMA would have to explain and account for the why the whistleblowers had been dismissed.

She noted that representatives from the office of the Auditor General South Africa (AGSA) were also present.

Governing Body responses to the Forensic Audit Report
Mr Bheki Ntshalintshali, Labour Representative: Governing Body, CCMA, applauded the format of engagement and stated that the Governing Body had delved deep into the allegations. The CCMA was important in monitoring industrial peace and thus needed to be beyond reproach in all areas. It needed to set a faultless example. The GB thus welcomed the engagement with the committee, and also welcomed scrutiny.

The Governing Body had identified some of the allegations for itself, through its own investigation, and had already determined that the Board must deal with them. There was no substance to allegations of fraud and corruption. However, in respect of the justifiable allegations the GB had already put mitigatory measures into effect. He did not believe that there was anything more that the GB could do at this stage, having applied corrective measures. The CCMA has had three audits on the issues, and was intending to close off on them in order to move forward.

The Chairperson interjected that this was the first audit report that had been presented to the Committee. She requested that the GB must tell the Committee what challenges had been identified, so that the same qualifications would not again be raised in the next audit, arising from an inability to implement a quick fix.

Mr David Lakay, Business Representative: Governing Body, CCMA, repeated that where allegations were justly made, the GB had put measures in place to rectify, oversee and mitigate the damage. They had committed to correction, and no one had continued to benefit from any of the irregularities. The Finance and Risk Sub-Committee was looking at the CCMA’s corporate governance as a whole. It had studied the AGSA Report and had created a list detailing all those areas needing the attention of the executive management. Executive management, in turn, would report to the GB on how the issues would be addressed and in what timeframe.

The AGSA’s findings on the lack of sufficient Broad Based Black Economic Empowerment (BBBEE) credentials for a contract to be awarded to a particular Information and Communication Technology (ICT) supplier had resulted in that supplier’s contract being terminated in 2009. As of April 2010, all suppliers were required to submit Department of Trade and Industry (dti) credentials, to prove their BBBEE status.

The Auditor General had commented on a payment error, which resulted in an accounting and payroll service provider being paid more for services than the amount agreed upon. It was discovered that there was an error on the invoice. CCMA had been in touch with the supplier, who acknowledged the error, and was in the process of recovering the funds. Systems were put into place to deal with regular reconciliation of supplier accounts. Mr Lakay thanked AGSA for pointing out the error.

Ms Masy Malefe, Member: Governing Body, CCMA, said that in relation to the extension of a supplier contract for ICT services, the CCMA acknowledged a management oversight that had led to a supplier having its contract routinely extended. This extended back as far as 2001. The oversight had now been rectified, by creating a decision register to track compliance of contracts with good and adequate processes.

In regard to the situation where a supplier had been paid in batches for the supply of goods, the GB had now taken steps to ensure that the policy could not be breached again. She pointed out that there was a fair monetary exchange for goods. The CCMA had not in fact paid a lump sum for the goods, but the Finance and Risk Sub-Committee was approached before each batch payment was made.

Mr David Carson, Member: Governing Body, CCMA, said that the GB acknowledged the oversight around the non-payment of PAYE for part-time commissioners. This issue pre-dated the tenure of the current Board, and was identified some time ago. It had run on for some time, which was the reason why some time was spent in examining the historical context. From 1996, part-time commissioners were treated as part-time contractors, therefore the CCMA had not deducted PAYE. Tax policy had changed since then, and the CCMA had now brought its systems into line with the new policy. It was not factually correct that the South African Revenue Services (SARS) had investigated the CCMA, as in fact the CCMA had identified the issue and had approached SARS itself, in order to rectify the problem. The CCMA was recovering the money from the affected commissioners, and would vigorously pursue the matter. The GB did not believe that this matter would recur, and so it was not a future challenge.

With regards to the late payments to the Provident Fund, the GB was satisfied that the late payment was not due to any fault on the part of management, as the CCMA had experienced cash flow problems in the last year. As soon as it received the money, it had settled the Provident Fund payment. He acknowledged that it was not exemplary, but assured the Committee that management had acted in good faith.

Mr Carson acknowledged that the salary advance to a part-time commissioner in January had exceeded the amount allowed, and that the advance was paid back over a longer time than prescribed in the policies. He conceded that this was unacceptable. However, that employee was in debt, and had found a sympathetic employee in CCMA to approve the advance. The CCMA had been repaid and would ensure that this did not occur again.

Mr Tembinkosi Mkalipi, Government Representative: Governing Body, CCMA, said that AGSA had said that a service provider was paid, despite AGSA not being able to see any significant changes effected to processes or operations by that company’s services. However, he pointed out that the recommendations of the service provider were of value, and had led to governance being strengthened.

He added that AGSA had commented that commuting costs of commissioners may have amounted to wasteful and fruitless expenditure. He pointed out that some officials were appointed in the Western Cape, but worked in Johannesburg. Taking specific instances into account, it was cheaper to pay commuting costs than relocation costs. All these costs were approved by management. Some of the staff in question were not appointed full-time in Johannesburg, but were brought in for a period to solve problems, because of their particular expertise. Other travel costs were regular travel costs. He thought it strange that AGSA should have raised this issue despite the fact that they were in line with the CCMA policy.

Mr Mkalipi commented on the comment that CCMA had used quotations from a single service provider. He explained that in this case, only one service provider possessed the necessary technology and skills to do the job, so it was in fact the sole provider. The PFMA allowed for a sole provider. However, he did agree that this should have been recorded by the Chief Financial Officer.

He noted that the comments around the splitting of quotations, supposedly to avoid these having to go to tender, were incorrect.  There was no splitting of a single amount. They related to Human Resources contracts. Three quotes were sought from three different contactors at the same agency. This amounted to a misinterpretation of policy, rather than a real splitting. 

Mr Lakay then answered the allegations that the CCMA had failed to employ the supplier giving the lowest quotation. This had arisen because the service provider in question was not able to provide a tax certificate clearance.

Mr Lakay then said that a separate bank account had been opened because of the leasing of property. When property was leased, the landlord required a rental guarantee, which was provided by a bank. The CCMA needed to resolve this issue before it could close the account.

Mr Carson said that the reasons for acquiring goods for more than the amount agreed upon were linked to foreign exchange fluctuations. The rationale for the fluctuations was duly noted in the CCMA records. This may be a future problem with imported goods that were brought in through service providers.

Mr Mkalipi added that the imported products were Microsoft products, which explained why they were imported. He also added that Microsoft was notorious for being an economic ’bully’.

Ms Malefe then commented on the points made by AGSA around tax irregularities. In one case, the supplier’s Value Added Tax (VAT) tax number was incorrectly captured. Every single supplier used had a VAT certificate. During the investigation, AGSA had never asked for these tax clearance certificates.

Mr Ntshalintshali said that the GB had attempted to respond to and explain each of the AGSA  findings. The final interpretation, however, lay with AGSA. When there was a difference of opinion, the CCMA had been prepared to bend to the AGSA view. The CCMA appreciated the help from AGSA and its understanding of their challenges. He added that the GB would elaborate on any further issues if requested.

Mr Lakay said that issues were being taken very seriously and that reporting had been implemented in various units in the CCMA to track challenges, in order to close loopholes before the next audit.

Discussion
Mr I Ollis (DA) said that the Committee had been in a difficult position. He asked the CCMA to clarify the reference to allegations of fraud and corruption, as the AGSA Report did not refer to fraud. He  asked whether these issues had impacted upon service delivery.

Mr Ntshalintshali replied that the GB had read into the Report that the allegations that led to the Report being conducted were centred around fraud and corruption. Service delivery had not been compromised and 150 000 cases had so far been dealt with.

Mr Ollis said that he had not understood Mr Nkalipi’s explanation on the split contract and asked for further clarification on this point.

Mr Ollis said that it was quite surprising to hear that it was cheaper to fly staff around than relocate them, but he could understand this if it was a short-term relocation.

Mr Mkalipi replied that he did not have all the details with him, but that the CCMA had investigated the costs of travel against costs of relocation, and had found that travel was less. He agreed with Mr Ollis that it depended on frequency and duration. He added that the travel costs in this case had been limited to a specific period.

Mr Ollis referred to page 11 of the briefing document, and assumed that the outstanding money owing to SARS was R11 million. The document said that CCMA had retroactively deducted the tax from commissioners. He asked if this meant that the CCMA would obtain all or part of the money back.

Mr Carson replied that page 12 of the briefing document went on to say that the CCMA had commenced to deduct the amounts, and had applied this retrospectively. The more correct phrase would be ‘being applied retrospectively’. The CCMA did not want part-time commissioners to benefit from not paying tax. The GB  would not leave any stone unturned in recovering the tax money.

Mr Ollis referred to page 12 and said that late payments were associated with the Department of Labour (DoL) paying the CCMA late. He asked why this had occurred, when the GB had DoL representation.

Mr Carson said that the DoL had cooperated, and had understood that by August 2009, the CCMA would already have been under enormous pressure due to the job losses occasioned by the recession. The caseload grew, and the DoL was willing to assist the CCMA, but there was a cash-flow issue.

Ms L Makhubela-Mashele (ANC) said that the CCMA document referred to “allegations” by AGSA. She sought clarity on whether these were allegations, or findings. She had received the impression that the GB was being quite defensive in its responses. She further noted that the AGSA Report mentioned instances where different service providers were given work, with each of the contracts being below R600,000 to obviate the need to go to tender. She heard the response of CCMA that these were in order, which seemed to suggest that the findings of the AGSA were incorrect. She asked whether the CCMA was disputing the Report from AGSA.

Mr Mkalipi replied that the amounts of R600 000 were not spent in one year but stretched over three years, for the same services. The CCMA had eventually paid that provider at the rate of R200 000 per annum. The agreement was that the service provider would source an advertisement for CCMA and get three quotes. He confirmed that there were some areas where the GB had not agreed with AGSA. This was one of those areas. The GB did not agree that this amounted to the splitting of quotes. There were areas where they did not see eye-to-eye with the AGSA and this was one of them, as this could not be regarded as splitting. It was a different situation.

Mr E Nyekembe (ANC) said that AGSA had found that there was an amount that had been split.

Mr Ngoako Sekgololo, Member: Governing Body, CCMA, replied that the GB had eventually agreed with the findings of the AGSA, but that it wished to give the context of how this contract had been run. This system had been in place since 2004. However, systems were now in place to ensure that this type of arrangement did not continue. The GB had accepted that the practice was wrong, and had addressed it. When the GB looked again at the strict letter of the law, it had sought a legal interpretation on the situation where goods of the same nature were received, and had acknowledged the need to tender in future.

Mr M Masemurule (ANC) asked how long the CCMA had been in existence. He said that on the one hand the GB was saying that it accepted the factual nature of the AGSA report, yet on the other was still referring to the AGSA comments as “allegations”. He now was receiving the impression that they were accepted as factual findings, but asked the GB to confirm what its stance was.

Mr Ntshalintshali replied that the CCMA was 14 years old. He acknowledged that the CCMA could have done better in detecting these issues. It was commonly accepted by both the CCMA and the AGSA that the Report contained findings. However, he pointed out that if the GB could have interacted with the AGSA before the Report was compiled, the GB could have provided AGSA with the relevant information, which might have made AGSA come to different conclusions.

Mr Masemurule was surprised that personal circumstances were allowed to determine whether an employee was allowed to get an advance. Although the GB created the impression that it was knowledgeable about its work, he was surprised that a situation like this could have been allowed to develop.

Mr Carson replied that the GB agreed with the AGSA that the person who approved the advance, and the person who had requested and received the advance had acted improperly. This individual had approached a sympathetic official for an advance to pay his mortgage. The GB had taken steps against the manager who approved the advance.

The Chairperson asked AGSA to provide some input on the comments of the GB.

Ms Caroline Mpuru, Business Executive: Investigations, Office of the Auditor-General, said that although the CCMA had referred to “allegations”, AGSA did not make allegations. It would investigate allegations made by other parties, and make findings, based on its terms of reference.

She added that although AGSA may not have used every document of the CCMA, there had certainly been an exchange of documents. AGSA could not constantly go to and fro collecting documents from the CCMA, but must, at some stage, reach a cut-off point from which the Report must be compiled. In regard to the statement that there was no need to replace CCMA systems, AGSA had not made any finding on this, because it dealt solely with whether there had been compliance with procurement prescripts.

Ms Mpuru responded to the comments around the travelling costs, and pointed out that Page 81 of the Report noted that there had been an allegation that the travelling costs were unnecessary. Page 14 of the Report clearly stated that the CCMA had become aware of the PAYE issue and had voluntarily reported it to SARS. Page 41 of the Report clearly stated that  all travelling expenses of the Commissioners were approved and allowed in terms of their contracts, and that these were therefore not regarded as fruitless and wasteful expenditure. During AGSA’s last appearance before the Committee it had pointed out that whether or not to pay those travel expenses depended on the contracts, which remained the prerogative of the CCMA.

The Chairperson asked CCMA to respond to those comments.

Mr Mkalipi said that the question whether the necessary information was provided was a moot point. However, the GB understood how AGSA worked, and no good would come of interrogating this point further. However, he wished to stress that the information would have been available, so it was rather an issue of timing. He agreed with AGSA’s point that the travel costs were not to be regarded as wasteful.

The Chairperson said that the CCMA should not try to disprove what AGSA was saying, but rather to explain why things happened in the way they did.

Mr Masemurule asked how the CCMA could justify offering flights to Commissioners, instead of relocating them.

Mr Sekgololo replied that at senior level, because of specialised skills, a person may be appointed to serve at Durban and another office, essentially multi-tasking by visiting another office from time to time. This was in fact a cost-saving measure, which ensured that one person could perform a dual function.

Mr Nyekembe wanted to elaborate on a point, and apologised if what he had said earlier was interpreted the wrong way. He had said earlier that CCMA had regarded part-time commissioners as contractors and had not deducted tax. However, this had since been rectified, and part-time employees were regarded as employees who should be taxed at source.

Mr Sekgololo added that when the CCMA was established, it had investigated how it should run, and how part-time commissioners should be used. A consultant had recommended that the bulk of the work should be done by professionals who had their own offices outside of the CCMA, and that they should be treated as part-time contractors. They were thus treated as service providers. However, in 2003, the National Treasury released its Practice Note 70, which dealt with how service providers should be treated. CCMA had not changed its approach to treat the commissioners as part-time employees. This error was picked up in 2007. An agreement was reached between AGSA and CCMA that the latter should approach SARS for an opinion. SARS notified CCMA that it should treat the part-time commissioners as part-time employees for tax purposes, although it could continue treating them as independent contractors for employment purposes. The CCMA would recover these tax funds within the following 12 months. It was in agreement with the findings of the AGSA.

Mr Lakay said that the increased workload had impacted on cash flow. Now the Finance and Risk Sub-Committee received quarterly forecasts to track operations and try to manage cash-flow.

Mr Sekgololo added that the CCMA had done a forecast in June 2009, and had submitted it to the Department, pointing out that if the trend increased, the CCMA would run out of funding by December 2009. CCMA had then put a bid in for R65 million additional funding. Mr Mkalipi had come to the GB and had put in an early request, to ensure that there were stopgap funds. However, the processes took time, and were delayed, and thus CCMA had to make representations for funding in September.

Mr W Madisha (COPE) said that the CCMA had certainly improved, but asked when the matters would have been fully addressed. He commented that the problem was that AGSA said that the CCMA had not provided all the necessary documentation.

Mr Lakay said that currently CCMA had a document listing all the matters raised in the audit. This was work in progress. The GB  undertook to address most, if not all, of the issues by the next audit, which would occur in nine months’ time. It had also compiled a document setting out system that would prevent the recurrence of issues that happened in the past.

Mr Lakay said that in regard to the documentation, there were two separate issues. When AGSA was investigating allegations, certain documents were not supplied in time. This, however, was a separate issue from matters in the future. CCMA had now been able to source the documents originally required, and these, if produced in time, would have had a substantial impact on the findings.

Mr Ntshalintshali raised concerns that the GB had indicated, from the beginning, that it would seek advice on how to move forward. It had not come before the Committee to refute the findings of the AGSA. It agreed with the AGSA, and had set up processes to deal with each issue. Hopefully, by the time of the next GB meeting, all the issues would have been dealt with. It had also been indicated that, from the very beginning, although it might have held a differing opinion on interpretation from AGSA, it had deferred to the opinion of AGSA.

Mr Masemurule said that the GB had not ever stated, in terms, that it recognised and acknowledged the weaknesses that AGSA pointed out. He would have wanted to hear this.

Mr Nyekembe wanted to make sure that the timeframe put into place to deal with all the recommendations would have been completed by the time of the next audit.

The Chairperson said that the Committee must ensure that all parties were on the same footing.  She noted that CCMA conceded that there had been financial irregularities of R3 million in respect of the 2008/09 Annual Report. However, AGSA had found that the irregularities amounted to R23 million. She asked for an explanation on this.

Mr Ntshalintshali replied that the GB acknowledged the weaknesses identified by the AGSA and that this was why it had worked out a plan. The target was to cover all these issues by the next financial year. Some issues were not foreseen at the time that the GB had assessed the financial irregularities. This had included the late payments; all of the issues were identified at different stages. The Chairperson was correct about the R3 million figure being identified by the CCMA. However, AGSA had traced these matters back over three years and further, resulting in a larger figure of R23 million.

Mr Sekgololo said that in 2008/09, CCMA had reported on discrepancies of R3 million, which  arose out of a high level regulatory audit investigation. In the second report, AGSA went into more depth, and found R23 million for 2006/07, 2007/08 and 2008/09.

Mr Ollis said that the amount could be a red-herring. He asked for a clear explanation as to whether that money had been lost, or not.

Mr Ntshalintshali replied that the money was not lost. Irregular expenditure occurred as a result of failure to follow NT regulations. The expenses were, however, justified for goods and services that were provided. The manner of procurement was, however, not in accordance with the requirements.

Ms Meisie Nkau, Business Executive, AGSA, said that AGSA wanted to emphasise that the CCMA’s executive management and GB did implement and monitor financial and risk management procedures. AGSA’s mandate was to enhance public confidence. It was clear from the investigation that the CCMA continued to experience problems with Supply Chain Management. The GB had to take ownership of the weak areas, and assist in ensuring that the CCMA had the appropriate systems in place. This called for alignment with all applicable legislation. It was comforting to note the assurances of the GB that it would tighten its oversight responsibility and internal controls.

The Chairperson emphasised again that the reason for calling in the CCMA was to ensure that the Committee had had the opportunity to interact with all parties, so that Parliament could obtain a balanced view. She was pleased that the CCMA was not downplaying the issues raised by the AGSA. A number of questions had been raised after AGSA had given its report. The GB had a responsibility to ensure that no policies or laws were flouted by the CCMA, and must ensure that if anything went wrong, the CCMA was able to detect this before irregularities could occur. The Committee had heard the CCMA’s explanations. However, it was a historic fact that there had been ongoing irregularities for some time.  AGSA did not make an investigation on fraud or corruption, so there was no cause to make any statements around these issues. She confirmed that the Committee had been pleased to hear Mr Ntshalintshali accepting that there were problems. She urged that wherever rules or laws were flouted, the CCMA must take this seriously.

She noted that the Committee would now take all the comments in to account, and decide when to call back role-players, to discuss timeframes and help redress the challenges. Some issues would take longer to resolve.

The meeting was adjourned.


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