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LABOUR PORTFOLIO COMMITTEE
2 September 2003
SKILLS DEVELOPMENT AMENDMENT BILL: DELIBERATIONS
Chairperson: Mr D. Olifant (ANC)
Documents handed out:
Skills Development Amendment Bill [B46-2003]
The Committee deliberated on the proposed amendments to the Skills Development Amendment Bill. The representatives from the Department, the Director-General as well as State Law Adviser assisted with clarification of certain issues. The Committee decided to finalise the Bill on 9 September and it will be voted on in the National Assembly on 17 September 2003.
The Chairperson read the objectives of the Skills Development Amendment Bill. The Committee then proceeded with clause-by-clause deliberations.
Amendment of section 1 of Act 97 of 1998, as amended by section 23 of Act 9 of 1999 Clause 1
Mr N Middleton (IFP) expressed concern that there might arise confusion with the definition of "designated groups" and hence it should be better explained.
Ms H Matlanyane (ANC) was also concerned about the term "black" and the
definition should probably be reworded.
The Chairperson said that he would like to remain consistent when using terminology in different Committees or Bill. Local government, Justice, and others accepted the term "black".
Adv R Ramashia (Director-General of Labour), said that he understood the concern raised but he did not think that the problem was with the design but rather with the history and interpretation. The term "designated group" had been used in various bills and should consequently continue. The people should be educated on what was contained in the phrase "black people" because the intention clearly was to be inclusive.
The Chairperson said that the definition of "black" had been cleared up.
Mr M Mzondeki (ANC) warned against confusion that could be created with using longer phrases such as "previously disadvantaged people". There was a need to find another method of reaching people and broaden awareness through education.
Mr S Mshudulu (ANC) said that the issue of "blacks" was a political one. He then asked the Department to simplify the subsection (b)(dA).
Ms A Bird (Department of Labour) said that the matter related to employment services and the current definition of it in the principle act envisaged giving advice to secure workers. Because of the subsequent proposed changes that employment services also included the provision of people who would deliver services to a client. The reason for introducing the clause was to ensure that the subsequent provisions in this proposed amendment would seek to control those agencies and that these practices were also controlled.
Amendment of section 6 of Act 97 of 1998 Clause 3
Mr Mshudulu asked about the impact of having five non-voting members rather than three, in reference to subclause (a).
Ms Bird explained that the current representation of the national skills authority was five employers, five trade unions, five communities plus four education training providers, plus a Chairperson. There are three non-voting members prescribed in the act, the first being a representative from the South African Qualification Authority, the other two were from private and public employment services. The total was 28 people. The amendment would allow another two persons to join and allow for expert advice and participation.
Amendment of section 9 of Act 97 of 1998 Clause 4
The Chairperson asked if the Minister deemed it necessary to change a sector of SETA and would it mean that he could also to a certain extent merge SETAs? The overlapping of different SETAs could lead to a stage where two SETAs were doing the same thing.
Mr Mshudulu asked to better define terms "sector" and "skills development".
Ms Bird said that there had been a dispute for some time about where the automotive sector should fit. Wholesale and Retail SETA argued that the automotive sector should belong to wholesale and retail. There were disputes about where a subsector falls and in those instances it was sometimes necessary, in the events that the parties did not agree, for the Minister to be able to determine where the subsectors were placed. The industry was continually growing and new subsectors emerged and it might be necessary to identify a new subsector and to determine which SETA it belonged to. This was a matter of demarcation disputes.
Director-General referred to a part of the clause that stated that the Minister could only change a sector of a SETA after consulting the National Skills Authority and the SETAs in question.
Insertion of section 9 of Act 97 of 1998 Clause 5
The Chairperson inquired on subsection (9A). He was worried about dissolving SETA because of nonfunctioning. What would determine its malfunctioning in the light of current function problems experienced within SETAs.
Ms Bird said that the intention of the clause was to give the Minister the power to merge SETAs if necessary and not to dissolve them. The Minister may identify under-performance and issue instructions to a SETA to provide certain opportunity to effectively correct the area of defect.
The Chairperson said that that did not resolve the problem. Section 5 speaks clearly about dissolution and did not correspond to the amendment. If the intention was having a merger, it should be clearly spelled out. The suggestion was to flag that point for the time being.
Director-General said that there was a clause in the principal act that allowed the Minister to take over the administration of a SETA hence the provision itself was not new. The act did not provide for corrective interventions before a merger could approach and dissolve a SETA. The temptation was resisted to take over the administration of a SETA. The law first preempts the problem by first introducing compulsory service level agreements to identify the targets. It allows for the Minister to take action on issues of demographics or other issues, which might result in malperformance of a SETA. The purpose was to allow taking corrective measures if necessary.
Ms Bird said that the clause could be used when SETA was not able to perform its function that inability could relate to incapacity. It could be also a financial inability. Primary Agriculture SETA dealing with farm workers and Tourism SETA were used as two examples. Because of low wages and due to the levy being calculated as a percentage of payroll, the amount of income that SETA got was low. Therefore there was not enough money to fund the administration of that SETA to cover the full range. It might be advantageous to combine SETAs.
The chairperson gladly accepted that explanation and said that clause 5 was clear.
Amendment of section 10 of Act 97 of 1998, as amended by section 23 of Act 9 of 1999 Clause 6
Mr Redcliffe asked for clarity of subclause (d)(jA) - why not have a subclause (k) rather than (jA).
Mr Hoon (Adviser) said that for legal reasons it was better to leave the formulation as is without renumbering the clause unless it was truly necessary.
The Chair said Clause 6 was clear.
Insertion of section 10A in Act 97 of 1998 Clause 7
Mr Mshudulu had a general question on clause 7. In the light of SETAs utilization of service providers he inquired on the way the Department monitored the performance and outcome as it had political implications.
Ms Bird said that she understood the problem and explained that this amendment gave the Director-General the power to prescribe standards, criteria and targets, in the service level agreement, for measuring and evaluating the SETA's performance of its functions.
Amendment of section 13 of Act 97 of 1998 Clause 8
Mr Redcliffe said the representativity aspect became a problem. The only way to ensure proper representation was to designate a fixed number of people for each SETA from specific groups in order to properly reflect the demographics.
The Chairperson pointed out that the clause stated "sufficiently representative of such designated groups" and so it explained the issue.
Amendment of section 14 of Act 97 of 1998, as amended by section 23 of Act 9 of 1999 Clause 9
Mr Redcliffe asked for clarity on why should the Minister prescribe the total expenditure and all other aspects enclosed in the clause and suggested that it should rather be a function of a Director-General.
The Chairperson said that in his opinion the clause was very straight forward. There should be no problem with giving the Minister certain powers. The execution of Minister's power is implemented by the Director-General in any case.
Insertion of section 14A of Act 97 of 1998 Clause 10
Mr Mshudulu suggested that the clause included all of the required information rather than making a cross-reference to different sections in order to improve the clarity of the Bill.
The Chairperson explained that the cross-reference had its purpose because it was only used in certain instances.
Amendment of section 17 of Act 97 of 1998 Clause 12
The Chairperson asked for confirmation that it was not obligatory for an employer to provide service in terms of learnership itself and could employ an agency.
Ms Bird said that it was possible for a Minister to permit an employer who is not himself going to provide the work experience to enter a contract with a learner in terms of learnerships. In practice the agency would act as an employer. The intermediate agency takes on all the administrative work and commitment to learners.
Amendment of section 24 of Act 97 of 1998
Mr Mshudulu asked about the issue of application and registration.
Ms Bird said that amendment 16 was required in order to proceed with amendment 17. The registration process must be formalized. The clause gave Director-General more power in relation to the agencies.
Insertion of item 4A in Schedule 2 to Act 97 of 1998 Clause 26
Mr Middleton inquired on subsection 4A(a)(iii) why the Chief Inspector of Mines must be regarded as the chairperson of SETA 16.
Ms Bird said that it was established under the Mines Health and Safety Act under which that regulation applied. The clause 26 is therefore consistent with the Act.
Amendment of section 46 of Act 29 of 1996, as amended by section 22 of Act 72 of 1997 Clause 28
Mr Redcliffe asked why the Mine Health and Safety Act and Skills Development Act were included in the same bill.
Ms Bird said that it was a historical problem. The Mine Health and Safety Act was passed before the Skills Development Act and the first one led to the establishment of Mining Qualification Authority that had many of the functions of the SETAs under the Skills Act. When the Skills Development Act was passed in the mining sector, the sectoral stakeholders wanted the Mining Qualification Authority to be the SETA and not to create another institution in the sector. Hence the roles and functions and obligations of a SETA should be conferred on the Mining Qualification Authority.
The Director-General said that the clause was referred to as a consequential amendment where amending one act impacts other legislation. Hence it was important to harmonize the law to avoid confusion.
The meeting was adjourned.