Skills Development Amendment Bill [B 16-2011]: briefing; Budget Review & Recommendation Report

Meeting report

Background and Process
Adv Eben Boshoff, Chief Director: Legal and Legislative Services, Department of Higher Education and Training (DHET) briefed the Committee on the Skills Development Bill [B16-2011]. The background and process to the Bill was explained. This Bill was drafted and published for comment in the Government Gazette No. 34222 of 15 April 2011. Consultation took place with all the relevant stakeholders in Skills Development during the development stages of the Bill. The Minister's efforts to enhance service delivery by the Sector Education and Training Authority (SETAs) were supported and all parties who attended the National Skills Summit supported the amendment of existing legislation in order to provide for more effective oversight in both the composition of the Accounting Authority and the constitution of the SETAs. The Minister engaged Business Unity South Africa in a meeting where the principles underpinning the need for the amendments to the Act were deliberated.

Purpose of the Bill
The Bill aimed to amend the Skills Development Act 1998 in order to effect the necessary amendments to the provisions relating to the establishment of SETAs, amalgamation and dissolution of SETAs; the incorporation of sub sectors from one SETA to another, the composition of the SETA Accounting Authority; constitution of a SETA; conduct of a staff member or Accounting Authority from engaging in business with the relevant SETA; disclosure of conflict of interests; the repeal of sections which were excluded from the transfer of the statutory functions to the Minister of Higher Education and Training dealing with employment services and Productivity South Africa, and to provide for matters connected therewith.

Clause 11 amended Section 13 of the Act and this provided for a standard constitution of a SETA. Clause 12 introduced two new sections - Section 13A which provided for the conduct of an Accounting Authority member or a staff member to declare a conflict of interest, and Section 13B which provided for the appointment of a Chief Executive Officer (CEO). 
(Please refer to the presentation document for full information.)

Discussion
Mr A van der Westhuizen (DA) voiced his concern over the centralisation of power and the large and central control the Minister allocated to himself. He said that he did not think the Minister and his staff had the capacity to oversee the important decisions in terms of this Act.

Adv Boshoff replied that in terms of the Minister having a centralised role, consultation had taken place and support had been given from all relevant stakeholders such as the National Economic Development and Labour Council (NEDLAC), and the National Skills Authority (NSA) and the support has been unanimous.

Mr Van der Westhuizen suggested time frames be included in Clause 6 which amended Section 9A of the Act. He asked if it would be necessary to state that the disciplinary codes and rules of the SETA from which employees come should apply to them as opposed to the new amalgamated partner. 

Mr Van der Westhuizen asked with reference to Section 9B 2(b) if the Minister would be compelled to take into consideration the inputs of the concerned parties in this process. In terms of administration, there might already be other legislation which would require this but he asked for reassurance in this regard.

Mr Van der Westhuizen noted that, with reference to Section 11B (b)(2), in terms of conflict of interest, the minutes of the meeting should be made public,  as often times minutes of meetings were confidential. In this case there should be full public disclosure.

Advocate Boshoff replied that it was not common practice to make minutes public and an obligation could not be imposed; however it could be disclosed to interested or affected parties. He said that there would not be value in making minutes public. He said that the Minister must firstly avoid having conflict of interest and allow for a whistle blowing process.  

Mr Van der Westhuizen asked, in terms of the constitution of a SETA, if the word “supported” should not be inserted instead of “recommended”. He said that there was very little that was essential in the operation of a SETA, and asked if the word “essential” was not too strong, and if it should not be “to improve functionality?”

Adv Boshoff replied that the point was to advise the Minister and therefore it was essential as the constitution had to provide a framework to deal with governance which must be precise and specific for the Minister to operate.

Mr Van der Westhuizen said that the appointment of a chief executive officer (CEO) in Section 13B was a clear example of power grabbing by the Minister as eventually the Minister would be able to appoint a CEO. How could we hold the Accounting Authority responsible if the person appointed was not appointed by them? There were no time frames within which the appointments must be made.

Mr Van der Westhuizen asked if a time frame should not be included for accountability. He felt uncomfortable with the phrase that the CEO must stay in office for six months and that very little reference was made to the Accounting Authority determining the performance criteria of the CEO. It seemed that the performance criteria would be determined by the Department and government officials sitting a distance away. There appeared to be very little consultation.  He asked if the word, “must” was the appropriate word to use and if it was not too strong a word. 

Adv Boshoff replied that specific words had to be used and that the terminology of legislation must be compelling.

Mr S Makhubele (ANC) asked if the purpose of the interaction was not just for the Committee to gain a clear understanding in order to engage at a later stage. He asked if the Committee was there for consultation with the relevant bodies. He noted that this piece of legislation dealt with thorny issues and therefore was sensitive and presented challenges.

Mr K Dikobo (AZAPO) noted the comment by Mr Makhubele and noted that Adv Boshoff was probably the wrong person to engage with. He asked if the size of the board was a “one size fits al” approach. He said that in a SETA the biggest employer would be the Department of Higher Education and Training and asked why they would be entitled to another representative. He asked if names submitted should not be in order of preference and if a clause of punitive measures should not be applied if conflict of interest was declared.

Adv Boshoff said that if an organisation wanted to provide more than six names, then the Minister must make a decision as there had to be representation and representation must also be gender sensitive. The Minister could use his discretion but he had it has to be within the confines of the law.

Ms N Gina (ANC) asked if the Act had commenced and asked where the engagements with the Department of Labour and the Minister were. She asked if the Act was going to commence anytime soon.

Adv Boshoff replied that the legislation had already been introduced into Parliament. The Minister of Higher Education and Training could not enforce it unless there was agreement.

Mr C Moni (ANC), asked as an issue of interest how a mentally ill person was determined, referring to Clause 10. He asked if there was no other remedy besides nullification. He asked if “senior management matters” could be clarified. He wanted to know if a chartered accountant, accountant or just an “all rounder” was required for this position.

Adv Boshoff replied that the presentation had only given a framework and that the Bill would give more detail. The Department would have to go to court to declare a person mentally ill. The senior management issues deliberately did not refer to qualifications. The appointed candidate must have the appropriate qualifications but with an all rounder approach, thus possessing elements of the qualifications mentioned. 

Mr Van der Westhuizen asked if there was any reference to the limit of remuneration paid.

Mr G Radebe (ANC) asked if all the powers were given to the Minister. He said that the Committee should have a role in interviewing and appointing board members as this was common practice in other portfolio committees.

Mr Makhubele noted that some proposals might change. Another engagement was still needed. He suggested that the Committee not engage further.

The Chairperson agreed with the discourse but Mr Makhubele was correct as this meeting was merely to orientate Members with the essence of the Bill. He noted that there was an issue of checks and balances and balancing power but that debate would not be opened up.

Higher Education and Training Budget Review and Recommendation Report
The Budget Review Recommendations Report (BRRR)  was adopted with amendments.

Committee Report on Strategic Planning Workshops
The Committee's Report on Strategic Planning Workshops was considered. Members agreed to meet again the next day to deliberate further.

Committee minutes: adoption
The Committee adopted its minutes of 10, 17, 24, and 31 August, and 6 and 13 September 2011 with corrections and amendments.

Ms Gina noted that the Committee had agreed that personal names would not be recorded in minutes but rather noted as the party.   

The meeting was adjourned.