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

SUMMARY

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.

MINUTES

Opening Remarks
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 regulation-making powers.

Discussion
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 public service

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 differences.

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 DPSA's mandate.

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 satisfied.

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 stakeholders.

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 specialised unit.

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 collective bargaining.

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 incentives’.

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.