The Department of Basic Education guided the Portfolio Committee on Basic Education through the amendments made to the Basic Education Laws Amendment Bill and discussed any outstanding considerations which had been alluded to by Members in the meeting the previous day. The main issue was that of trade union activity and the implication of including prohibition of trade union activity during school time and on school property on the educators’ rights. After deliberation with the Department, it was clear to Members that it would be unconstitutional to prohibit trade union activity during school time on school property. The meeting would be continued the following day when it was hoped that the Amendment Bill would be fully accepted by Members.
The Chairperson thanked the Department of Basic Education (DBE) for the amendments made after the previous day’s consideration of submissions on the Bill. All Members had had an opportunity to debate and give their input the previous day. These views had been incorporated.
Amendments Proposed by the Department of Basic Education
Mr Chris Leukes, Director: Legal Services; DBE, presented the amendments.
On page 4 line 52, after ‘school’ DBE had inserted the words ‘contemplated in Chapter 4’ and omitted SASA and refer to the provision in the Act.
On page 5 line 5, DBE omitted ‘any’ and substituted the word 'a finance' so that the sentence read: ‘a member of the finance committee or delegation of the governing body in order to manage any matter that has financial implications for the school’.
On page 5 line 38, after ‘time’ DBE inserted ‘determined by the governing body of the school in terms of section 20(1)(f)’ and took out wording in clause 3 on page 5 from line 46 ‘determined by the governing body in terms of 20(1)(f)’.
33 A (1) would read: ‘No party political activities may be conducted at a school during school time determined by the governing body in terms of section 20(1)(f)’ and 33 A (3) would read: ‘A member of a political party may not, for the purposes of conducting party-political activities, encroach on the school time’.
On page 6 line 5, DBE omitted the paragraph (a) as the Member of the Executive Council for Finance would not be consulted.
On page 6 line 11, DBE omitted subsection (4) and substituted it with (4)(a) A governing body may, with the approval of the Member of the Executive Council –
lease, burden, convert of alter immovable property of the school to provide for school activities or to supplement the school fund of that school; and
allow any person to conduct any business on school property to supplement the school fund.
(4)(b) ‘A governing body may not allow any activity on school property that is hazardous or disruptive to learners or prohibited by this Act.
There would only be a subclause (a) and (b). Subclauses (c) and (d) would fall away.
Page 8 line 5, DBE omitted paragraph (iv) and substituted it with a new paragraph (iv):
‘must manage within its available resources the Continuing Professional Teacher Development system’.
Page 8 in line 50, 2010 would be substituted with 2011.
Bill Long Title
On line 15, DBE would have to delete ‘to require the approval of the Member of the Executive Council and the Member of the Executive Council responsible for finance before a governing body may enter into any loan or overdraft agreement to supplement the school fund’ .
The paragraph starting on line 22 would read: The South African Council for Educators must manage within its available resources the Continuing Professional Teacher Development system.
Ms N Vukuza-Linda (COPE) asked how the trade unions interests could be accommodated.
Ms C Dudley (Alt) (ADCP) also felt that the discussion on trade unions had not been completed.
Mr Leukes replied that there may be an issue on the constitutionality of that provision. The educators had the right to join trade unions, participate in the trade union activities and to go on strike. The Education Labour Relations Council (ELRC) Collective Agreement gave the educators time off to allow them to take part in those activities as discussed the previous day. Abuse of that time needed to be managed and disciplinary action taken when rules were transgressed. Constitutional rights of teachers may be in conflict with the Bill if union activities could not be conducted during school time on the school property.
Mr Stephens Moribishane Ramafoko, Legal Advisor; DBE, said that the union activity had been factored into contact time and even if teachers used their 8 hours allocated to them in terms of their ELRC Collective Agreement, that time should not impact on the teaching time. As Mr Leukes had pointed out, placing a restriction on regulating participation in union activity would certainly be in conflict of the educator’s constitutional right and the Collective Agreements within the ELRC.
Adv Anthea Gordon, Legal Advisor, Parliamentary Legal Services, agreed and said that in the Labour Relations Act, laws were clearly set out for labour rights and educator’s rights. Trade union legislation was not an issue which needed to go into the Bill. The ELRC Collective Agreement clearly defined the relationship between the employer and employee and proper management of this would combat the abuse of it.
Ms Dudley asked why the abuse had continued, what the conflict of interest was in terms of the head of the school being involved in the activity and shutting down the school, why the SGB did not step in and why, even though there were provisions, the concern around trade union activity, which was a concern of the Minister, was not being dealt with.
Mr W James (DA) said that he understood that although there was abuse of the system, the current piece of legislation could not regulate against it. The implication was that the remedy for the issue of abuse lay elsewhere. He suggested that the Committee should tackle the abuse in a separate initiative, perhaps through scrutinising existing legislation and holding parliamentary debate.
Mr K Dikobo (ANC) commented that this was not a legal problem, but a management and leadership issue, where managers were too timid to apply the law. Prohibiting trade union activity would imply that teachers were not entitled to the rights which all other workers had. It was important to look at alternate ways to provide oversight on the issue.
Ms N Gina (ANC) agreed that the situation required debate around intensifying management’s oversight role.
The Chairperson noted that everyone was satisfied that it would be unconstitutional to stop union activity and were in agreement that abuse of power was taking place and should be discussed on another platform. The matter could be addressed in a meeting with the Department of Labour .
Mr A Mpontshane (IFP) said that since members of unions abused their rights, it was important to know if in the Bill, unions had a right to encroach on school time.
Mr Dikobo clarified that the argument was that the unions were regulated and should not be discussed in the bill.
The Chairperson said that unions did have rights but that it was regulated and that the abuse would be a priority of the Committee.
Mr Z Makhubele (ANC) added that when matters were regulated they were not open to debate.
Ms N Vukuza-Linda (COPE) commented that historically schools had been inundated by a variety of encroachments, including religion. Prohibition of activities, political or otherwise would be ideal, but she accepted the way things were.
In closing, the Chairperson said she had made a summary of the Members’ views to be discussed on another platform. The aim of the meeting the following day would be to pass the Bill.
Ms Dudley asked if it was possibly to vote on the Bill in the current meeting.
Mr Dikobo asked when the final text would be received.
Mr Alan Small, Senior State Law Advisor: Office of the Chief State Law Advisor; Department of Justice said that amendments would be delivered to the Committee before 4pm that day.
The Chairperson thanked everyone for their participation and the meeting was adjourned.
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