Public Service Amendment Bill: input from COSATU and Public Service Commission

PUBLIC SERVICE AND ADMINISTRATION POTFOLIO COMMITTEE
6 June 2007
PUBLIC SERVICE AMENDMENT BILL: DELIBERATIONS

Chairperson: Mr P Gomomo

Documents handed out:
Public Service Amendment Bill [B31-2006]
Supplementary Submission of COSATU, DENOSA, NEHAWU, PAWUSA, POPCRU, SADNU, SADTU, SAMA and SASAWO on the Public Service Amendment Bill [B31-2006], As Amended
Portfolio Committee Amendments to Public Service Amendment Bill

Audio Recording of the Meeting

SUMMARY
The Committee listened to submissions by COSATU, which represented the views of the union and its public service affiliates. Ms Prikashni Govender (COSATU) presented to the committee the submission.

Ms Govender said that there were procedural problems with the Bill which they had raised initially, especially the omission to consider the Bill at NEDLAC and the Public Service Coordinating Bargaining Council (PSCBC). COSATU realized however that this is an interim process, and have decided that they will deal with these at later stage, through the Single Public Service legislation. However, the issues still stand.

Technical amendments were proposed, and some changes already reflected on the document. COSATU noted with disappointment that some of the proposals they had made were rejected by State Law Advisers, like the proposal on the powers of the Premiers in creating and abolishing government components in provinces. The union still offered advice on this.

The Public Service Commission would meet with DPSA and State Law Advisers to see if their (PSC) submissions are implementable, as they had been blocked by the advisers who questioned the constitutionality of some of the proposals.

After takind the committee through the recent amendments to the Bill, as proposed by other stakeholders, the committee and state Law Advisers, Ms E van Schoor (DPSA) responded to all the concerns by the members of the committee, COSATU and the PSC. The latest amendments cover issue from the technical amendments to the Bill, the transference of powers by the Minister of Public Service and Administration (MPSA), the creation and abolishment of government components and the proposed committee of Ministers to oversee the determination process in a range of issues relating to their different sectors within the public service.

The Chairperson said that the committee would only accept and finalise the document after the submission by COSATU and the PSC have been added.

The Director-General told the committee that as a department, they were as anxious as the committee to put this matter to rest. He then requested that they be given a deadline for this.

The committee agreed that it was better to meet the next week to finalise the document. The Chairperson announced that the final meeting on the Bill would take place on Tuesday 12 June 2007.

MINUTES
Submission by COSATU
Ms Prikashni Govender (COSATU) presented to the committee the submission by COSATU and its public service affiliates.

Ms Govender said that there were procedural problems with the Bill which they had raised initially, especially the omission to consider the Bill at NEDLAC and the Public Service Coordinating Bargaining Council (PSCBC). COSATU realized however that this is an interim process, and have decided that they will deal with these at later stage, through the Single Public Service legislation. However, the issues still stand.

The word “agency” needed to be replaced with “component” in the whole document. The original Bill proposed the insertion of a new section 2(2A) , which would authorise the Minister of Public Service and Administration (MPSA) to extend uniform employment conditions and terms to other departments of the public service. COSATU is in support of the original amendments proposed, as they believe this would undermine the continued fragmentation of the public service.

COSATU noted that there have been responses to this, in particular, by the South African Police Services. This amendment has been replaced with a proposal that any determination on employment conditions by the MPSA for educators, members of the services or for particular categories should be subject to “the concurrence of a committee of Ministers”. COSATU’s   concern is that the agreements made in negotiations through bargaining and negotiation structures could be undermined and undone at later stages, as they will have to be scrutinised by this committee of Ministers. These Ministers should then be involved with negotiation process, through structures like the PSCBC or any other bargaining structures.

COSATU had made a proposal with regards to section 3A (a) (ii), which empowers the Premier to establish or abolish government components “after consultation with the Minister and the Minister of Finance”. COSATU noted that their proposal to replace the latter with “on the advice” had been rejected by the State Law Advisers. COSATU maintained that provision should be made to ensure that these powers of the Premiers are not used at provincial level to undermine national policy priorities.

Proposed technical amendments included the insertion of the words “subject to subsection 3” in section 7A(5)(a), because at the moment it may lead to a contradictory reading with section 7A(3)(c)

COSATU withdrew the last proposal that related to termination of employment, because it is covered in the current Act.

Discussion
Ms Empie van Schoor (DPSA) said that the replacement of the words “agency” with “component” had been pointed out before, and it would be done. Ms van Schoor responded to the proposal with regards to section 2 (2A). She pointed that it is not the MPSA who makes the determinations for other sectors, but other Ministers in relation to their own legislation. The example is that of the South African Police Act. The proposal says that the determinations must be in line with the various legislations within these sectors, and the committee of ministers would over see that this happens. These would still go for collective bargaining.

With the regards to the powers of the Premier, Ms Schoor said the provinces cannot be prevented from establishing or abolishing the components. A clause requesting them to conduct a feasibility study should be introduced, to make sure that the process does not undermine national policy priorities.

Ms van Schoor said that the proposal relating to the delegation or assignment or transfer of powers to components was accepted.

The Chairperson asked the department and the State Law Advisers to ensure that the amendments were inserted in the correct places, and that no omissions take place.

He told the committee that he had received a letter from the Public Service Commission (PSC). He asked Dr N Maharaj (PSC) to brief the committee on the contents of the letter. Dr Maharaj said the letter was in response to the letter from the Minister, which advises to seek other means to include a clause to make the proposals of the PSC implementable. The PSC is currently occupied with its own plenary sessions, and the concern is that the commission does not have law-making powers. He asked the department to assist to make sure the proposals are kept for inclusion in the Single Service legislation, or future amendments of the Bill.

The Chairperson suggested that the committee goes through the proposals by the PSC.

The director-general of the DPSA, Prof R Levin said the department did not, in principle, have any problem with the proposals of the commission. The one thing that is important to note is that there are State Law Advisers involved, and they were not completely happy about the constitutionality of the proposals. Prof Levin suggested that there be a tripartite meeting between the PSC, DPSA and the State Law Advisers to try and amend the situation.

Dr Maharaj agreed to a tripartite meeting.

Proposed Amendments to the Bill (Draft Document)
Ms van Schoor was asked to take the committee through the latest changes in the draft documents, comprising of the amendments (subsequent to the meeting of 30 May 2007).

A number of references that were not there had been added, as advised by the State Law Advisers. This included the proposal by COSATU to added reference to the section that relates to the transfer of powers to the components.

In 2(A)(i), the advisers realised that the MPSA had not been included in the determination process, and the clause spoke of other sector Ministers only. This has been inserted, and the MPSA will follow the same process as other (consulting sector legislation, in this case this very Bill) before taking it to the committee of Ministers.

On the issue of transfer of functions by the Minister to any body, the Clause had to me it clear that this will happen if there is no undermining of other legislation, like the Municipalities Act and the Constitution.

The Committee had proposed that the name of the South African Management Institute be changed, by Proclamation by the President, amending Schedule 1. A new clause expressing such an intention has been inserted. The clause dealing with promotions has been omitted as it is in the original Bill.

Clause 7B has been redrafted, and gives clearer guidance on the formation of specialised service delivery units within departments.

Mr J Nyambi (ANC) asked for clearance on the process to be followed in the creation of these units. He thought that only the relevant Minister would be consulted, and he saw the Premier mentioned as well.

Ms van Schoor, said in a province there is no requirement to consult the Premier, but this could be amended if the committee felt so. The Premier is also consulted when a department is created, and not a unit.

Mr Nyambi asked that the wording be reworked and made clearer so that it does not create unnecessary problems.

The clause that dealt with heads of departments has been brought together with the one that deals with the transfer of staff. This was a technical amendment in terms of format.

Mr Minnie needed clarity on the concept of government components. He wanted to find out whether these would have Boards or some structure to monitor them.

Ms van Schoor said that having a board is not a requirement, but a component could have an advisory or consultative structure if it wishes to do so. The decision making powers would be with the head of the component, as the accounting officer, and also the relevant executive authority like the Minister, Premier of MEC. Initially it had been proposed that these components could perform functions related to socio-economic rights, but now this is prohibited. The MPSA can transfer functions to such components.

A government notice initiating relations will be used to get the heads of components and executive authorities to understand their roles.

The Director-General added that one such component does exists, namely the Centre for Public Service Innovation (CPSI). It was formed as a Section 21 company, and the department later realised that starting a component as a Section 21 company was not good practice and so the CPSI was disestablished. It is still housed under DPSA, and the intention is to relaunch it as a component. It will implement the advice given to the Minister by yet another envisaged advisory board, on public service innovation.

The meeting was adjourned.