Further Education& Training Laws Amendment Bill [B13-2011] and Higher Education &Training Laws Amendment Bill [B14-2011- Bill]: public hearings with Deputy Minister

Meeting report

UCT Presentation on the Higher Education Laws Amendment Bill, B14-2011
Dr Hugh Amoore, Registrar, University of Cape Town (UCT), presented UCT’s submission on the Bill. UCT supported the object of the amendments to the Bill but believed that some of the amendments would have damaging and unintended consequences. Attention was drawn to Clauses 1 and 2 of the Bill which sought to amend Sections 27 and 34 of the Higher Education Act 1997. These dealt with the issue of ensuring that there was no inappropriate conflict of interest by people who took decisions for the university.

It was proposed that Section 27(7)(c) should be redrafted to include the declaration of “any personal interest” as an additional requirement. UCT did not support the proposed sub-sub-section 27(7)(e)(i) on the grounds that it would not be possible to enact. The Section, as proposed, would make it impossible for a member of another university or higher education institution to serve on the Council. It would also make it impossible for many qualified and employed people, whose services were invaluable to Councils, to serve on them. Conflicts of interest did arise and the proper procedure was to require disclosure and recusal where necessary. The Bill should make it explicit that a contravention of the provisions was an offence. These provisions should apply to members of a council and members of a committee of a council.

UCT did not support the proposed sub-sections 34(4) and 34(5) because they would have unintended and damaging consequences in two respects. First, a university may be precluded from using a patented product in which a staff member had a financial interest as this could involve indirect conduct of business. Second, it would discourage key individuals from taking employment in higher education institutions, especially if the proposed sub-section was interpreted to include the interest of spouses. A member of staff of a public higher education institute must declare any direct or indirect interest in any entity that tendered to contract with that public higher education institution in writing.

Discussion
The Chairperson commented that there was general public outcry that, beyond conflict of interest, there would be abuse of entrusted public power and undue influence and that people were able to circumvent the system.

Mr G Radebe (ANC) asked what Dr Amoore’s interpretation of “personal interest” was? How far did it extend? Mr Radebe asked about a situation in which a Council member had no direct or indirect interest other than that it was his friend who was competing for a contract. Would this qualify as a conflict of interest?

Dr Amoore answered that this was already catered for in the legislation and in the proposed legislation in the provision that a member of Council must ask within the best interests of the institution. A member would not be acting in the best interests of the institution if the member were to allow his or her friend’s interests to influence his or her judgement in the matter.

Mr S Makhubele (ANC) asked if Dr Amoore had any suggestions for possible punitive measures for offences by members of the Council.

Dr Amoore replied that at present UCT’s Council stipulated that, should a student or staff member be in breach of the Institutional Statute, then he or she would be subject to disciplinary action. The Council would have no authority to remove a Council member but, a Council member, staff member or student involved in corrupt practices could be prosecuted under legislation that dealt with corruption.

Mr A van der Westhuizen (DA) said that many members of council had family interests in that they had family members who were students or staff at the university. Would UCT support the extension of what is meant by “personal interest” to include “academic interests” of members of Council?

Mr Van der Westhuizen said that it was expected of people in corporate structures to annually declare all interests so that when this matter arose, people did not wait until it was too late for the matter to come to the table. Instead, it would be known beforehand what interests people had. Mr Van der Westhuizen asked for comment on this.

Dr Amoore replied that UCT required such annual written declaration before the first Council meeting of every year by every member of council and by every staff member or student who sat on committees which made decisions which could have financial implications. This declaration extended to personal interests which it defined to include those of a partner or spouse so that they wereon record. Dr Amoore thought that most institutions would probably wish to do this although he was not sure if this was something that needed to be enacted in the Act but that it would be good practice. Such an annual declaration did not go far enough as one could acquire personal interests during the course of the calendar year. For this reason, UCT’s proposed changes were important as they ensured that the onus remained on the individual who had an interest in a matter, to declare his or her interest and recuse him or herself.

Mr Van der Westhuizen asked for comment on the amendment to Section 47 which had been changed to extend the term of office of “an independent assessor appointed under Section 44” to 90 days instead of 30 days.

Dr Amoore replied that UCT supported the extension of the time limit as it was often not possible, given the complexity of the issues, for the work to be done within 30 days. This amendment was desirable.

Tshwane South College Comment on Further Education and Training Laws Amendment Bill [B13-2011]
Mr Johann Kraft, Deputy Principal: Academic, Tshwane South College (TSC), presented TSC’s submission on the Bill. Comment on the amendment to Sections 6, 7 and 8 of the Further Education and Training Colleges Act of 2006 (the principal Act), dealing with the mergers of institutions, was withheld as the mergers had already taken place and were currently running. Amendment to Section 10 of the principal Act concerning the composition of the college Council, made provision for the Minister to appoint five external members and for the Council, in consultation with the Minister, to appoint four additional members. It was asked if the four additional members would be appointed by Council and then ratified by the Minister. TSC strongly believed that all required policies referred to in the amendment of Section 17, and where applicable, were drafted and approved by the Academic Board and ratified by the Council.

The biggest concern at most further education and training (FET) colleges at present was the process of establishing a staff component for colleges (amendment of Section 20). Section 20(1)(a) stated that lecturers would be appointed in terms of the Further Education and Training Colleges (FETC) Act but did not make reference as to how “non-educator” staff would be appointed. Would support staff also be appointed in terms of the FETC Act?

TSC expressed concern about the definition of “non-lecturer staff” in Section 20(1)(b). In the FET sector it had never been clear whether a person was a “college sector” employee or a “public service” employee. This had created animosity among staff on the same campus as different rules applied to each.

TSC believed that it was imperative that employees doing the same work, on the same level of responsibility etc, should be remunerated on the same level (Section 20(4)(b)).

It was suggested that teaching staff at FET colleges be referred to as “lecturers” and not “educators” as the prior term implied greater status and in order to remove stigma that FETs were a “dumping ground” for “non-performing students”.

The amendments to Sections 22 and 23 of the principal Act were concerned with the funding of training conducted by colleges. Would artisan funding for example be funded through the National Skills Fund (NSF)? These people were the poorest of the poor who needed to be given skills to lift themselves out of poverty. This was especially the case in rural areas. Provision made through bursary schemes was problematic in that some people were under the implication that the bursaries needed to be paid back. Some of the requirements of the application process were unreasonable and required applicants to spend money on travel which they did not have.

It was not clear in Clauses 34(7) and 34(8) in terms of which enabling clause in the Labour Relations Act, Public Service Act or FETC Act, the Minister had the authority to unilaterally make a determination on conditions of service. These Clauses contradicted Clause 33(b). TSC strongly rejected Clauses 34(7) and 34(8) and would insist that the matter of conditions of service be included in the negotiations proposed. It seemed as if the reduction in the number of leave days and the increase in working hours may have been an important factor leading to these insertions. TSC was concerned that education and training could not be dealt with in terms of the rules and regulations of the Public Service as education and training had unique requirements. For this reason, TSC insisted that a new salary structure and conditions of service must be negotiated in the relevant bargaining structures.

Discussion
The Chairperson commented that important issues of labour laws applicable to the transfer of employees had been raised.

The Chairperson asked if “office-based educators” were based in the provincial departments of education or in the staff complement of colleges?

Mr Kraft replied that “office-based educators” were based at the provincial offices. At college level, you also found educators that were office-based, including campus managers and top management structure of the college. Were these people office-based? This was a problematic area.

The Chairperson asked if there should be uniformity to clarify this so that the Minister would have the power to delegate to provincial departments so that staff were part of a national entity.

Mr Kraft agreed but was of the opinion that the national department could establish provincial offices for ease of control.

The Chairperson asked Mr Kraft for his own views on his question asked in his presentation about whether the four additional members would be appointed by Council and then ratified by the Minister.

Mr Kraft replied that the appointment of the four additional members should be a prerogative of the Council which should also be ratified by the Minister so as to strengthen the hand of the Council.

Mr K Dikobo (AZAPO) asked for clarity on Mr Kraft’s comment that policies referred to in the amendment of Section 17 should be drafted, and approved by the Academic Board and ratified by the Council. For example, if a policy was purely a human resources (HR) policy, then would the HR Committee draft it and present it to the College Council and also pass it through the Academic Board? Would the same happen for a finance policy, et cetera?

Mr Kraft replied that he did not intend to say that all policies must pass through the Academic Board, but only where applicable.

Mr Dikobo asked which Section prompted Mr Kraft to fear that the Minister would have the authority to unilaterally make a determination on conditions of service.

Mr Themba Ncalo, Council Chairperson, Tshwane South College, replied that this was rather insinuated in the Bill.

The Hon. Prof Hlengiwe Mkhize, Deputy Minister of Higher Education and Training, said that she was particularly interested in picking up on the general spirit of presenters. She hoped that as presentations proceeded, the discussion should remain true to the spirit of the Sections of the legislation.

Mr Makhubele said that, although the mergers had already taken place, that it may still be necessary for comments to be made on the matter.

Mr Makhubele stated that Mr Kraft’s submission asked a number of questions seeking clarity on the Bill. Mr Kraft could therefore not fully consider issues until there was more clarity.

Dr J Kloppers-Lourens (DA) referred to Mr Kraft’s submission that all employees doing the same work, on the same level of responsibility etc, should be remunerated on the same level and asked how employees’ qualifications and experience would be taken into account.

Mr Kraft agreed that a person with one year experience would earn less than a person with 30 years experience.

Dr Kloppers-Lourens asked what the difference was been an “educator” and a “lecturer”. She thought the term “educator” was the accepted term in the broad education sector currently.

Mr Klark replied that slightly more status was attached to the term “lecturer” compared to “educator”.

Dr Kloppers-Lourens asked what after-hours work lecturers were expected to do.

Mr Kraft replied that some of the teaching staff were required to work after hours. Currently they worked 7.5 hours a day. If this was to be extended then staff would be less willing to take work home, such as marking.

Mr Van der Westhuizen said that, in some colleges or universities, attendance at Council meetings was poor. Was this the experience of other colleges? He was also concerned that powers were being taken away from the college councils. If members on the councils felt that their ability to make a contribution was extremely limited then it might be difficult to attract people of the required calibre to serve with necessary due diligence on the councils.

Mr Ncalo responded that the College had experienced problems of this nature. People not arriving for meetings and strike action was a major problem. However, since TSC embarked on bringing stability into the College it had not experienced these problems. Rogue elements had been disciplined through disciplinary hearings. An honorarium paid to members for attending Council meetings had been introduced as an additional incentive.

Mr Kraft added that the TSC Council was fully operational and was in fact over-committed at this point.

Mr Van der Westhuizen said that two classes of staff at the colleges were being introduced. The one class would be employed under the Public Service Act (PSA) and subject to the conditions and codes of conducts of the PSA. The second class was additional staff members employed by the colleges with additional funds raised by themselves. Although the Act could stipulate that these two classes were on the same salary levels, employees would be subject to different conditions of service. Many colleges for example employed staff on an annual basis. He had heard of many colleges that employed staff for only ten or eleven months of the year so that they did not have to pay staff over December when colleges were closed. He could not go along with this.

Mr Van der Westhuizen raised the issue of fundraising by FET colleges. It seemed that colleges would do more and more work for Sector Education and Training Authorities (SETAs) and be remunerated from the SETA money which would then be used to employ “educators”. He was concerned that the incentive to raise funds from alternative sources might fall away when colleges councils said that they no longer had many powers and the wellbeing of the college was not so much in their hands as it used to be. They might say that the Minister did the appointments and the organogram and so the Minister should then pay the bills as well. Did Mr Kraft see these as possible dangers or did he think the Bill made sufficient provision to avert those dangers?

Mr Kraft responded that Mr Van der Westhuizen’s two questions were related. The public service staff were appointed by the state. The stipulation for the “skills programmes” was clear in that only a certain percentage of enrolled students may be in skills programmes for which the College may use its full-time staff to provide the training. Mr Kraft foresaw that the number of teaching staff providing training on the skills programme should actually be increasing. Ninety percent of the training that was offered was offered on the unit-standard basis. In order to do this training the College could access funds through the respective SETAs and the National Skills Fund (NSF).

Mr Kraft asked if there would be any money from the NSF from be given for artisan training? TSC had three campuses where artisan training was fully running and over-booked. There were not enough facilities and equipment but the College was coping. Salary costs were especially high.  The College wanted to employ more training staff but asked if more money would be given from the NSF for this. Going the SETA route was very time consuming and involved so much red tape.

SADTU Submission on the Further Education and Training Laws Amendment Bill [B13-2011]
Mr Mugwena Maluleka, General Secretary, South African Democratic Teachers Union (SADTU) presented SADTU’s submission on the Bill. SADTU supported the Bill which it believed could bring about transformation of our education and training system. The submission dealt with issues relating to the appointment of staff and certain transitional provisions made in the Bill. The amendment Bill had two categories of employees: those appointed by the Ministers in terms of the Public Services Act and those appointed by the Council. In terms of Section 3 of the Employment of Educators Act, the Director-General was the employer of educators in the service of the Department of Education. The Department of Higher Education and Training (DHET) was national and therefore SADTU submitted that the Director-General should be the sole employer of the FET College employees. Furthermore, the Minister of Higher Education and Training should be the sole employer in respect of determining conditions of service and salaried of FET College employees. To do this, the Constitution of the Education Labour Relations Council (ELRC) would need to be amended to provide for the Minister as another employer party in the ELRC.

Clause 34(4) gave powers to the Minister to transfer posts which were fully funded by the state in accordance with the Public Service Act. This Section referred to the transfer of posts, not the incumbents who were appointed to those posts. It was submitted that if the Minister had powers to transfer posts from the private sector to the public sector, the Minister must also transfer the incumbents who were appointed in those posts.

NAPTOSA Presentation on the Further Education and Training Laws Amendment Bill [B13-2011]
Ms Louise Smit, Senior Executive Officer, National Professions Teachers Organisation of South Africa (NAPTOSA), presented NAPTOSA’s submission on the Bill. NAPTOSA supported the principle of making the FETC sector an exclusive national function of the DHET and therefore supported the resulting amendments as proposed in the Bill, provided that Schedule 4 of the Constitution was amended.

NAPTOSA was concerned about Clause 12 containing amendments to Section 20 of the principal Act. The first draft of the FETC Amendment Bill published in April 2011 said that lecturers would be appointed in term of the FETC but the second draft published in August 2011 said that lecturers would be appointed in terms of the Public Service Act. This was a major problem for NAPTOSA.

It was submitted that the transfer of staff to state posts in terms of amendments to Clause 34 of the Bill would be a grave mistake. Amongst others, NAPTOSA proposed that consideration be given to the amendment of the Public Service Act by adding “College staff” to the list of employees whose employment was governed by an own services act.

NEHAWU Submission on the Further Education and Training Laws Amendment Bill [B13-2011]
Mr Neil Newman, Parliamentary Researcher, National Education Health and Allied Workers’ Union (NEHAWU), presented NEHAWU’s comments on the Bill. It was submitted that NEHAWU broadly supported the objectives of the current Bill. It supported proposed changes to Schedule 4 of the Constitution to reassign all powers and functions pertaining to FET to the national executive. NEHAWU however proposed that changes be made to amendments contained in Clauses 12 and 34 of the Bill. Section 12 dealing with the appointment of staff should be amended so that staff would be employed by the public service rather than by individual colleges.

It was proposed that “until the parties agree to establish a new structure”  in the Transitional Provisions set out in Section 34(9), (10) and (11) be replaced with “until new collective bargaining arrangements are agreed to”.

Discussion
Mr Dikobo commented that the main concern, especially for SADTU and NAPTOSA, was with the change in the second draft which said the people would be employed in terms of the Public Service Act instead of the FETC Act.  This seemed to be creating all the confusion. Could the Department comment on whether the changes were intentional?

Mr Dikobo asked Mr Newman for clarity on the proposed changes to Clause 34.

Mr Van der Westhuizen asked how much scope there was within the Public Service Act to accommodate the specific needs of college lecturers. His understanding was that, if you fell under PSA then you were compelled to be at your office for 40 or 45 hours a week, that you were limited in terms of your leave, et cetera. He had heard in the past that colleges needed to be more flexible. How much flexibility would a college principle have in terms of the PSA to be able to operate within the PSA and adapt the regulations to the needs of the college?

Adv Eben Boshoff, Chief Director: Legal Services, Department of Higher Education and Training answered that the legislative framework was developed in a specific manner which took the lecturers out of play when it came to employment within the public service and then brought them back into the fold as a public servant. The difficulty for the Minister and Department was that this Portfolio Committee could not amend legislation that was not in their domain. The Minister and the Department could also not anticipate how other portfolio committees would deal with amendments to legislation. The difficulty was to work within the current legal system when proposing legislation which could not be in conflict with existing legislation. For this reason, it was not possible to change the provisions as provided for to say they were any other Act other than the Public Service Act. That flexibility did not exist in terms of the current legislation.

Adv Boshoff said the PSA provided a framework which was based on a structure of collective bargaining which would also determine the outcome of conditions of service and the approach in terms of the flexibility of the PSA. It should be remembered that Sections 97 and 97A of the Labour Relations Act provided that if this group of employees moved into the public service, then the conditions of service currently applicable to them (hours of work, salary) would not change unless done so through the collective bargaining service. The history of those identified to be moved back to the public service were employees whose conditions of service were similar to those of an educator. They had protected conditions of service. The transfer would therefore be much easier.

Ms Smit responded that NAPTOSA was fully aware that the PSA was the only Act in terms of which lecturers could be reappointed. NAPTOSA also understood that this Portfolio Committee could not prescribe and amend the PSA which was why it proposed that lecturers were appointed in terms of the PSA in the interim. A process to amend the PSA should be put in motion.

Ms Smit said that despite that the conditions of service for lecturers was protected, the attractiveness of employment in terms of the PSA needed to be considered in the long term.

Mr Newman said that if you put in legislation to establish a new structure, then a new structure had to be established.

The Chairperson commented that it seemed to be that the DHET did not speak to the Department of Public Service and Administration.

The Chairperson thanked the presenters for their contributions which the Committee would duly consider.

The meeting was adjourned.