A summary of this committee meeting is not yet available.
PUBLIC SERVICE AND
ADMINISTRATION PORTFOLIO COMMITTEE
09 May 2007
PUBLIC SERVICE AMENDMENT BILL: DEPARTMENT’S RESPONSE TO SUBMISSIONS
Acting Chairperson: Mr M Baloyi (ANC)
Documents handed out:
Public Service Amendment Bill[B31-2006]
Amendments proposed following bilaterals between COSATU and DPSA
Amendments proposed following COSATU and DPSA bilaterals: PowerPoint Presentation
COSATU submission on Public Service Amendment Bill
Report: SAPS bilateral and matters raised by the North West Premier
The meeting was a report-back by the Department on its response to concerns raised by submissions made by COSATU, the South African Police Service and the Office of the North West Premier. Bilateral meetings had taken place and the ensuing amendments were presented to the Committee. COSATU raised a number of concerns surrounding government agencies, conditions of service, transfer related provisions, abscondment, outside remunerative work, grievance procedure, reduction of salaries as well as regulation making powers. The DPSA also presented the concerns and amendments raised by the South African Police Services and the North West Premier, the presentation included letters between the National Commissioner JS Selebi and the Director-General of the DPSA Professor RM Levin. It was concluded that SAPS be given the freedom to deal with salary changes on their own through collective bargaining.
The Acting Chairperson stated that they were there to conduct a further
hearing and thus no decision would be taken on adopting the Bill at that
meeting. A submission had been made to the Committee that there had been
bilateral discussions between the Department and COSATU. This meeting was the
result of these bilateral discussions. The Committee would go into formal
consideration of the Bill once they had heard everyone's input.
Proposed Amendments to Bill after DPSA - COSATU Bilateral
Ms Collette Clark (Deputy Director-General: Human Resources Management:
Department of Public Service and Administration) gave apologies on behalf of
the Director General, Professor R Levin, who could not attend the meeting.
Adv Empie van Schoor (Manager: DPSA Legal Services) proceeded with the
presentation, which highlighted the concerns that COSATU had regarding the Bill
and measures to deal with these (see document). These matters were: consultative/advisory
bodies to minister, government agencies, conditions of service, transfer
related provisions, abscondment, supervening impossibility, outside
remunerative work, grievance procedure, reduction of salaries and
Mr N Newman (COSATU) stated that COSATU and the department reached an agreement
on what was felt were conditions of employment issues. COSATU initially felt that conditions of
employment should be part of Collective Agreement and not part of the Act. It was stated that it existed in the Act and
it was only amendments that would be added. COSATU raised the point that the
Public Service Act was promulgated before the Labour Relations Act and
subsequently there was a section in the Labour Relations Act that was
dedication to conditions of employment.
It was proposed, by COSATU, that all conditions of employment issues
should be taken out of the Act and deemed as Collective Agreements. What was
eventually agreed upon was the difficulties and concerns regarding this
specific Bill. It was decided to
approach the issue of conditions of employment by raising it with specific
Mr Baloyi asked what exactly was being dealt with, whether it was just name
changing from ‘agencies’ to ‘units’ and ‘components’ or if they were meaningful
changes. He remained with the topic of government agency and asked if the DPSA
thought the objective was realisable with the amendments that were being
proposed in this meeting. Were the amendments tabled at the meeting a
compromise move, or could they be termed a move at all?
Mr Newman responded that COSATU believed that if more and more agencies were
created and given autonomy, it would become problematic, and it would also take
away both political control and co-ordination. It could be viewed as
‘commercialising’ or a movement toward privatising service delivery - which was
also raised as an issue by COSATU. Creating more structures would result in
fragmentation. There was a creation of agencies, formed outside the Act, and
agencies then developed independent functions and independent ways of dealing
with matters. One of the major problems raised was that the Bill was tabled in
Parliament without consultation with stakeholders. Government had said that it
was a technical Bill, whereas COSATU maintained that if there was a change of
structures in service delivery it could not be technical, that it was dealing
with service delivery issues and labour relations.
Mr Newman said that COSATU felt that the Bill should have been tabled at NEDLAC
before it was tabled in Parliament. COSATU had stated that they were
considering a Section 77 notice and getting legal advice in order to prevent
the Bill from going through before the notice was tabled. It was on this basis
that COSATU had been approached to have discussions.
On the new proposal of changing government agencies to government components,
it was felt that agencies would not provide direct service delivery in social
economic issues. Their problem with agencies had to do with issues of
accountability and political oversight. Specialised units could rather deal
with specialised functions. Once the levels of autonomy were looked at, COSATU
felt comfortable that their concerns had been dealt with. The discussion
included the DPSA's rationale, and it was felt that they had come a bit closer
in understanding government’s need to deal with all the reasons that had
motivated the Bill. COSATU did not want fragmentation and lack of control to be
the result of the Bill.
Mr Baloyi asked for clarity on the matter of Outside Remunerative Work when it
stated that the application would be approved after thirty days if the
executive authority failed to make a decision on this within thirty days. Was
there a communication requirement?
Adv Van Schoor responded that it would be acceptable if, once the prescribed
information was submitted, then the thirty days would start.
Ms M Mashangoane (ANC)
enquired whether the agencies and government components had their functions
approved by parliament
Mr K Minnie (DA) asked how the government components would work in practice.
Adv Van Schoor stated that there were differences between government agencies
and government components. Government components required feasibility studies,
which would then recommend its establishment. These components were not allowed
to perform functions in respect to housing, health care, food, water, social
security, children and education. Their functions were more limited in
comparison to government agencies. In respect to other areas there were no
Dr U Roopnarain (IFP) asked for clarification on the issue of responsibility
and a concrete example.
Adv Van Schoor responded to the issue of accountability. The department
realised there needed to be a variation in the current accountability of the
accounting officer and that therefore there should be a set of provisions for
accountability for the head of the unit in respect of the financial
delegation. In terms of human resources
delegation, this came from the political head.
Ms C Clark (Deputy Director-General: DPSA) wanted to develop further on the
debate around Special Purpose Vehicles, which in some cases already existed. At
present there were provincial growth and development strategies, within
provincial departments, where there was co-ordination in the economic growth on
a horizontal level in those particular provinces and the trans-sectional or
cross cutting mandates that have had to be carried through. What premier
offices have done was come up with institutes to basically drive the provincial
growth and development strategies but they were not necessarily located in any
specific way in terms of the legislative framework. Another example of
cross-cutting mandates, which did not detract in any way from the legislative
mandates of a specific department, was Gauteng’s Early Childhood Development
agency. If the legislative framework was there, it would be an ECD component.
An ECD component had a mandate which the Department of Health, Department of
Education and Department of Social Welfare was responsible for, and it did not
detract from the legislative mandate, but it was acting as an enhancement
vehicle to ensure that a learner is school ready at the age of six years old.
What each of the three departments were supposed to do, had been enhanced by
this delivery vehicle. There are also instances in terms of transportion,
specifically in Gauteng with the roll out of the Gautrain, which meant that
there were period mandates in terms of deliverables. FIFA would also be an
example in that even without there being a minister for FIFA there were
transversal and transsectional mandates requiring some sort of government
component to drive that as a period mandate for the duration.
There were also innovative economic hubs on a horizontal level in provincial
departments but there were no legal vehicles to assist with those particular
agencies or what would be called a focal point to deal with trans-sectional
mandates. DPSA's obligation to ensure that the second degree rights of the
Constitution were not fragmented through such vehicles. There was a need to
deal with this while maintaining the necessary competency of oversight from
government. The agencies that currently
exist had independent boards that had created problems in terms of conditions
of service and also mandates that, in some instances, were moving away from the
In reply to Dr Roopnarain asking if the Labour Portfolio Committee had
discussed the Bill, the Acting Chair stated that all interested structures were
invited to debate the Bill.
Ms Mashangoane wanted to know exactly what the unit’s functions were and
requested that the functions should be listed.
Adv Van Schoor stated that units may have regional functions, delegated
functions or assigned functions. It could even be transferred from the
Minister. There was a range of possible functions.
Mr K Khumalo (ANC) worried about instability that may arise around this Bill
and stated that the phrasing of amendments such as Section 7B on the
Specialised Service Delivery Unit may cause confusion.
Adv Van Schoor stated that Service Delivery Units are created differently and
it functions differently within the department. There were two kinds of
delegation. The Human Resources delegation, which was not compelled to be
delegated to the head of the unit by the department. The other was the
financial delegation from the accounting officer, which had to go to the head
of the unit. This could only be revoked in special circumstances.
Mr I Julies (DA) stated that he was bothered, not by the Bill, but by the
secrecy that seemed to surround the Bill. He stated that things were done
behind closed doors such as COSATU having meetings with the Department. Was
there a need for all the secrecy to somehow reach an agreement? He would like
to be fully informed on the happenings around the Bill. He expressed his dissatisfaction
with the proceedings thus far.
Mr Baloyi responded to the issue of secret meetings and stated that there was
nothing untoward happening during these meetings. Participation at any level
could not be questioned. There was no objective of trying to stop the Committee
from doing their job.
Mr Julies remarked that they as the Committee were supposed to come to an
agreement and then present a unified view; he wondered if Labour would then be
Mr Baloyi said that they were not being presented with a new Bill, but with
input given during the public hearing phase. The Committee was not concerned
with caucusing. The Committee would do their job according to the Constitution
and what Parliament required of them.
Mr Minnie asked if the DPSA had also tried to reach agreements with the other
Mr Baloyi reiterated that this meeting was on the issues raised by COSATU with
the DPSA. Other stakeholders would have their meeting if one were required,
just not at this meeting.
Ms Clarke responded to the issue of the thirty days requirement. Thirty days
was not a problem in relation to the executing authority applying their
attention to the applicable categories which have been deemed acceptable for
outside remunerative work.
Mr N Gcwabaza (ANC) wanted clarification on "Government components may not
perform functions in housing, health care, food, water, social security,
children and education" on Slide 4 and Slide 5 which stated
"Specialised Service Delivery Unit may perform functions regarding health
care, education, etc".
Adv Van Schoor responded that government components outside of the department
but within the public service, may not perform socio economic functions.
However in the case of a service delivery unit within the department, it may
perform social economic functions.
Ms Mashangoane wanted to know what persuaded the DPSA to revert to the previous
Public Service Act with regard to abscondment.
Ms Clark stated that abscondment was different from unauthorised leave of
absence. Unauthorised leave is usually confused with abscondment in the public
service. Unauthorised leave of absence is someone deliberately not going to
work but their location is known. They were being supercilious in that they
were not fulfilling their contractual obligations and they were not coming to
work therefore you have had to act in terms of the Labour Relations Act because
of their deviation. Abscondment was where the individual deserted their
particular employment as a result compromising the constitutional right of
someone else who must receive a public service. Hence the employer must have a
tool to deal with an illegal matter, where there has been dereliction and
desertion, and the location of the individual was unknown. A legal instrument
was needed to make sure that someone else could be brought in to work as a
replacement when someone has absconded. The thirty days was reasonable from an
administrative justice perspective. There was an obligation to attempt to find
out the location of the individual. If the attempt was unsuccessful since
communication was not efficient especially in rural areas and one would have to
send a registered letter to really find out where the person is. Thirty days
was reasonable in terms of the assurance that the individual really had
absconded. There would be less legal repercussions in that there had been
sufficient time to try and locate the individual and therefore the ten days had
been slightly unreasonable in hindsight.
Mr Julies wanted clarification on whether there was a time limit or
restrictions on how long the person could work outside.
Ms Clark stated that it would depend on the department concerned. In certain
instances the executing authority would state that every year you would have to
reapply or every three years, to see how it would impact on your original
contract. It would be clearly defined according to the needs of the employer as
long as it did not detract in any way from the original contract of employment.
Mr B Mtembu (ANC) wanted know if one was granted permission for Outside
Remuneration Work, how it would affect employee contracts and service delivery.
Ms Clark stated that the primary employee contract with the employer would be
the employment that they currently have. Generally any outside remunerative
work would be considered secondary contract work where the employee has to get
permission. However there can be no conflict with the primary employment
contract. The fact that if one were to lecture outside of the primary employee,
there would be the advantage of transference of knowledge. Knowledge creation
around public service would be instances, which would lend themselves extremely
well for permission to be granted for outside remunerative work. It needed to
be measured in terms of how it would be done to ensure that there would be no
clashing with the primary contract.
Mr Baloyi commented that if there was a specialised unit within the department,
then surely an Act would be required in order to do that. The existing
legislation did not provide room for such a strategic arrangement. He wanted to know if there was a need to do
that or if other options were open.
Adv Van Schoor stated there was no
legislative provision that said such a unit could not be created. There was
also no provision for compulsory financial delegation to the head of the unit,
by listing these units and listing their functions there was some statutory
recognition given to these units. It gave certainty to their framework and to
how they operate. It was not legislated on, as is in the case of financial
delegation, where the new accounting officer can simply come and withdraw if he
does not like the arrangement. It is to give stability to the unit.
Adv Van Schoor felt it should be reiterated that this seemed to be an important
tool to prevent the creation of unnecessary units outside of the public
service. It was also important, once a review was conducted, to bring some of
them back to the public service whether as a government component or as a
Mr N Gcwabaza (ANC) wanted clarification
of Slide 5: "Subject to relevant Treasury's approval, accounting officer
of department must delegate all financial functions in terms of the Public
Finance Management Act to head of unit". Should it be 'must' or 'may' and
what would be the function of the Accounting Officer?
Adv Van Schoor responded that in terms of accountability, the financial
delegation would be only for financial powers with respect to that unit and not
the whole department. The rest of the department would still be under the
responsibility of the Accounting Officer. On question of 'must' or 'may', it
was intended to be a 'must'.
Ms Clark added that, specifically with provincial legislatures, it would be
much easier in terms of program funding and the conditional grant allocating
money to such a special delivery unit. If it had already been authorised and
had followed the treasury processes from the financial perspective, it made it
much easier in terms of funding.
Mr Khumalo required clarification on Slide 10: "Clarify that if department
does not adhere to time frames in grievance procedure of the Public Service
Commission, employees may refer dispute to bargaining council or institute
court proceedings". He asked if was "must" or "may"
and if the answer was "may" did it then imply that the employee can
also use the common law route.
Adv Van Schoor stated that the employee could decide which route they chose to
take and it was supposed to be "may".
Presentation on South African Police Services submission
Adv Van Schoor explained that SAPS had brought concerns with the regard
to Bill to the DPSA. The SAPS was chiefly concerned about the power of the
Minister and the proposed employment practices. They had had a few bilateral
meetings with them. SAPS had an initial concern that the Department of Public
Services and Administration would have the power to enforce employment
practices (see document).
Mr M Sikakane (ANC) wanted to know the present situation.
Adv Van Schoor replied that the police could raise their own salaries via
Mr Sikakane wondered what problem the police had previously when they were
complaining about the lower salaries.
Mr Baloyi stated that the involvement of the sector minister would allow for
the uniqueness of each decision and would have to take the different
circumstances into account.
Adv Van Schoor stated that she should not say for sure but that usually the
budget played quite a big role in salaries and raises.
Mr Boloyi then asked about the ministerial determination.
Adv Van Schoor clarified that the determination would still be made by the
Minister but there had to have been the concurrence of the Portfolio Committee.
Ms L Maloney (ANC) asked about bonuses if salaries would then be uniform.
Adv Van Schoor stated that bonuses were supposed to be covered by the term ‘pay
Presentation on the North West Premier matters
Mr A Mulaundzi (Director of Legal Services: DPSA) explained that there
had been concerns with regard to government agencies and accountability, namely
the head of department. The Bill did not provide a review for sanctions. Regarding the disciplinary process, the new
department employing that person should be able to continue with the disciplinary
process. The head of department should be able to give it to the premier and
not just refer all grievances to the Public Service Commission.
Mr Gomomo wanted to know if the person who had a grievance had the right to
raise the grievance with the person who caused it, since he did not believe in
shifting the problem.
Mr Mulaudzi said it was an enabling provision.
Ms Maloney cautioned that the Public Service Commission was not a ceiling and
that other institutions can be consulted.
The Acting Chairperson thanked all the participating stakeholders and the
department and adjourned the meeting.
No related documents
- We don't have attendance info for this committee meeting
Download as PDF
You can download this page as a PDF using your browser's print functionality. Click on the "Print" button below and select the "PDF" option under destinations/printers.
See detailed instructions for your browser here.