Public Service Amendment Bill [B31-2006]: voting

PUBLIC SERVICE AND ADMINISTRATION PORTFOLIO COMMITTEE
8 June 2007
PUBLIC SERVICE AMENDMENT BILL [B31-2006]: VOTING

Chairperson: Mr P Gomomo (ANC)

Documents handed out:
Public Service Amendment Bill [B31-2006]
Version 2B: Bill incorporating proposed amendments
Portfolio Committee Amendments to Public Service Amendment Bill [B31A-2006]
Public Service Amendment Bill [B31B-2006]
Proposed amendment regarding Section 5(8) (Clause 7)
Fraser-Moleketi speech on Public Service Amendment Bill (Appendix A)

Audio Recording of the Meeting

SUMMARY
The Enactment Clause, Clauses 1, 2, 3, 4, 7, 8, 9, 11, 13, 17, 19, 20, 21, 23, 24, 25, 26, 27, 30, 32, 33, 35, 37, 38, 39, 40, 43 and the Schedule were agreed to, with amendments.

Clauses 5, 12, 14, 15, 16, 18, 22, 28, 29, 34, 36, 41 and 42 were agreed to, without amendments.

New Clauses 6, 10 and 31 were agreed to.

The Long Title was agreed to, with amendments discussed during the meeting.

MINUTES
Public Service Amendment Bill
Adv Empie van Schoor (Chief Director: Legal Services - DPSA) went over the amendments to the draft Bill that were suggested during the Committee’s previous meeting on 6 June 2007. The latest amendments were included in the document titled “Version 2B: Bill incorporating proposed amendments” and were highlighted in purple.

The latest set of amendments were:

Section 2A (a) (page 9) was amended to address COSATU’s concern that agreements reached through the collective bargaining process would be circumvented. The State Law Advisor (SLA) suggested the amendment be made at the beginning and paragraph (2A) (a) (ii) was rephrased to avoid the use of “subject to” later on in the Bill.

Section 7A (4) (page 24) was amended by substituting the word “after” for the word “in” to avoid complications for the provinces.

Section 7A (5) (a) (page 25) was amended at the suggestion of COSATU to make it clear that such functions cannot be assigned to government components.

Section 7B (1) (iii) (page 29) was amended at the suggestion of the Committee to include a third category of consultation.

Section 7B (4) (page 29) was amended to substitute the word “protocol” for the word “charter” and to remove the necessity to consult with the Minister on the approval of such protocols.

Section 16 (page 44) was amended to use objective rather than subjective text, to use the word “dismissal” rather than “discharge” and to reflect the correct cross-references to Clause 12.

Section 16A (4) (page 46) was amended to refer to committees dealing with matters relating to the Public Service only.

Section 17 (4) (a) (pages 49 and 50) was amended to include dismissal for abscondment.

Discussion
Adv Van Schoor advised that the SLA had prepared the Portfolio Committee Amendments to the Public Service Amendment Bill (B31A-2006) for the Committee to vote on. She mentioned that the Public Service Commission (PSC) had held discussions with the Department and she asked the PSC to report on the status of those discussions.

Dr Norman Maharaj (Commissioner – Office of the PSC) confirmed that in order to seek concurrence, the PSC had met with the SLA and had communicated with the Department of Public Service and Administration (DPSA). He said that the SLA and the Department were in the process of attending to the matters raised by the PSC and that they were very close to reaching agreement. He was unable to confirm whether agreement had been reached or not.

The Chairperson said that the Committee had given the parties the opportunity to resolve any disagreements. Being "close" did not mean that agreement was reached. The Committee was trying to comply with procedures to enable it to table the Bill in Parliament for its second reading the following week. If agreement was not reached, the Committee would be unable to do so. He asked the Director-General of the DPSA for comment.

Prof Richard Levin (Director-General – DPSA) answered that the DPSA’s dilemma was that although it agreed in principle with what the PSC sought to achieve, it also noted the legal and constitutional implications that were indicated by the SLA. He suggested that the best course of action was to proceed with the review of the A version of the Bill and to provide an opportunity to the SLA to explain the compromises reached on particular issues. He added that the Department will tend to follow the SLA’s advice because of the legal challenges that may arise in future.

Dr Maharaj said that the PSC would accept compromises that were reached because it had taken serious consideration of the SLA’s advice. The Commission did not wish to envisage any challenges to the amendments subsequent to their approval and was sensitive to that. He proposed that any outstanding additional powers that PSC sought, should be followed up through alternative legislature, such as the Public Service Act.

Mr Richard Sikakane (ANC) wanted to know what the areas of conflict were that would prevent the PSC from achieving its objectives.

Mr Kenneth Khumalo (ANC) was concerned about the compromises made between the DPSA and PSC. He asked if the Bill was going to be legally sensitive or if it was able to stand the provisions of the Constitution. He did not want a situation where the Bill was rejected in Parliament. He had raised this issue on a previous occasion and was given the assurance by both the DPSA and the PSC, that there was agreement.

Dr Maharaj said there appeared to be a misconception and stated that there was no disagreement between the DPSA and the PSC. The PSC’s position was based on what the Chief SLA advised on what can and can not be included in order to ensure that the Bill would not be referred back. There was no disagreement between the intentions of the DPSA and the PSC.

Ms V Mentor (ANC) said that she had a fundamental philosophical question about the spirit and intention of the Amendment Bill but that she would defer her question to a later stage as she did not wish to bog down the discussion at this point.

The Chairperson asked the Principal State Law Advisor for his comments and opinions.

Adv Herman Smuts (Principal State Law Advisor – Office of the Chief State Law Advisor) confirmed Dr Maharaj’s comments. He said that the SLA, PSC and DPSA all tried to give effect to what the Constitution tried to achieve and that there was agreement by the parties on the Amendment Bill. He explained that the Constitutional Court’s certification judgment related to what direction the Commission was allowed to give and the challenge was to determine the effect of the directions that were given. The Constitutional Court was not clear if the directions were binding on the Administration to which they were given – that would depend on the relevant legislation. The SLA assumed the Commission’s directions to be binding and proposed that the Committee consider the provisions under Section 196(4)(d) of the Constitution, which he read out.

Dr Maharaj explained further that the PSC was limited to give directions on recruitment, promotions, transfers and dismissals. The Commission thought it could give directions outside those matters but the SLA disagreed.

Mr Sikakane and Mr Khumalo accepted the explanations given by Adv Smuts and Dr Maharaj.

Ms Mentor asked how close the proposed amendments to the Bill came to allowing the Public Service to render a service and still be a development-orientated, caring and people-orientated organisation. She was concerned over the impact of HIV/AIDS on the Public Service and in relation to the clauses on incapacity due to illness and ill-health. She wanted to know if there was recourse for persons who where dismissed due to abscondment if the abscondment was not intentional.

Mr Gonomo replied that the questions raised by Ms Mentor were explained to the Committee during previous meetings.

Prof Levin commented that one of the key strategic objectives of the Department was to achieve compliance with public administration prescripts. The amendments proposed by the DPSA sought to strengthen the compliance clauses, thereby assisting the Minister to achieve compliance. The DPSA supported the PSC in making directions more binding but conceded the difficulties of the constitutional and legal terrain. He acknowledged that the proposed amendments were not ideal as Section 196(4)(d) of the Constitution limited what can be done. Nevertheless, he felt that the proposed amendments would enhance compliance and result in an improved public administration, particularly in the fields of personnel administration, employer-employee practices and career management. The result would be better basic administration, which would enhance the developmental state. He suggested that the creation of specialized service delivery units and government components (agencies) would provide departments with opportunities for enhancing service delivery.

Mr Gonomo remarked that the goal of a single Public Service should be realized sooner rather than later and agreed that the proposed amendments would take the Public Service a step closer to where it wanted it to go.

Mr Khumalo asked whether the latest amendments were included in the long title of the Bill.

Adv Van Schoor replied that the amended long title was included at the end of the A version (page 23).

Mr Gonomo requested Adv Van Schoor to take the Committee through the Draft Portfolio Committee Amendments to the Public Service Amendment Bill [B31A-2006].

Adv Van Schoor explained that the Committee must indicate its comments after each clause was read. She proceeded to list the amendments to the clauses:

Enactment clause
A technical correction was made - to omit “President” and substitute “Parliament”. The Committee made no further comment.

Clause 1:
This clause included the definitions. The major change was to change the word “agency” to “component”.
Mr Sikakane asked what the difference between “agency” and “component” was. Adv Van Schoor explained that agencies were seen as something outside the Public Service but in terms of content they were not. The term “components” indicated that they were included in the Public Service. The Committee made no further comment.

Clause 2:
Incorporated the issues raised by the South African Police Service (SAPS) and the appointment of the heads of departments in terms of the Constitution. The Committee made no further comment.

Clause 3:
Provided for the inclusion of stakeholders in advisory bodies formed by the Minister and the suggestion made by COSATU that determinations made by the Minister were subject to the Labour Relations Act and collective agreements. The Committee made no further comment.

Clause 4:
Substituted the word “agency” with the word “component”. The Committee made no further comment.

Clause 6:
Made provision for SAMDI to be listed in a schedule to the Act, rather than in the Act itself. The Committee made no further comment.

Clause 7:
An amendment to Section 5(8) was proposed, following discussions held between the DPSA, the PSC and the SLA. (This issue was debated earlier in this meeting). The Committee made no further comment.

Clause 8:
Made provision for the failure to provide documents to be an offence and included the applicable penalties. Ms M Tlake (ANC) asked if there was a reason why the amount of the fine was not specified. Adv Van Schoor replied that the amount of a fine was automatically adjusted in terms of the Adjustment of Fines Act. The Committee made no further comment.

Clause 9:
Substituted the word “agency” with the word “component” and omitted subsection (6). The Committee made no further comment.

Clause 10:
Replaced by new Sections 7A and 7B, dealing with Government Components and specialised service delivery units. Adv Van Schoor noted a correction to Section 7B (1) (a) (ii) – omit “or a provincial department” as it was covered in 7B (1) (a) (iii). Ms Mentor asked whether the existing agencies within the Department were excluded from the Act or if they would be regarded as components. Adv Van Schoor replied that no definition of these components was made and that current agencies were not regulated. The executive authority was not precluded from approaching the Minister to establish it as a component. The only component proposed by the DPSA was the Centre for Public Service Innovation but others may be proposed by the Minister, MECs or Premiers. The Committee made no further comment.

Clause 11:
Technical corrections were made to the clause. The Committee made no further comment.

Clause 13:
Technical corrections were made to the clause. The Committee made no further comment.

Clause 17:
Substituted the word “agency” with “component” and the word “discharge” with “dismissal”. On the recommendation of the SAPS, it was made clear that the appointment of the Police Commissioner was in terms of the Constitution. The Committee made no further comment.

Clause 19:
At the suggestion of COSATU, the words “or transfer” was omitted as it could penalize employees on probation. The Committee made no further comment.

Clause 20:
Provided for consultation prior to mass transfers and made provision for the new position to be taken into account when employees on probation were transferred. Committee made no further comment.

Clause 21:
An unnecessary phrase was deleted. Committee made no further comment.

Clause 23:
Technical corrections were made to the clause. The Committee made no further comment.

Clause 24:
Included a new clause dealing with compliance, the submission of reports to Parliamentary committees and a proposal by the PSC regarding the period of notice of resignation in cases where the employee was given notice of a disciplinary hearing. The Committee made no further comment.

Clause 25:
Dealt with abscondment and made it a form of misconduct. Provision was also made for reinstatement if there were good grounds for doing so. Ms Mentor asked whether this would apply to the “free riders” as well. Adv. Van Schoor asked what was meant by the term “free riders”. Ms Mentor and Mr Khumalo explained these were people who did not belong to a union and may not agree with agreements made between the employer and the unions. Adv Van Schoor pointed out that the proposals made by the unions were submitted to the Committee for consideration. Mr Gonomo suggested the issue be flagged for later discussion.

Clause 26:
Dealt with outside remuneration and included the proposals made by COSATU. The Committee made no further comment.

Clause 27:
Technical corrections were made to the clause. The Committee made no further comment.

Ms Mentor interjected that the Committee needed to ensure that the law was applicable to everybody and did not favour the unions.

Clause 30:
Technical corrections were made to the clause and an unnecessary phrase was omitted. The Committee made no further comment.

Clause 31:
Dealt with the grievances of employees and was redrafted to allow Heads of Department’s (HODs) to approach the PSC directly as well as ensuring that all avenues were exhausted to resolve disputes internally before collective bargaining was resorted to. Mr Sikakane asked why HODs were allowed to approach the PSC directly, thereby going over the heads of the executive authority. Adv Van Schoor explained that the executive authority was often the cause of discontent and that the matter remained unresolved. The HODs did not have carte blanche as the circumstances in which the PSC may be approached were described. The Committee made no further comment.

Clause 32:
Technical corrections were made to the clause. The Committee made no further comment.

Clause 33:
Technical corrections were made to the clause. The Committee made no further comment.

Clause 35:
Included the provision that the deliberations were subject to the Labour Relations Act and any collective agreement, placed restrictions on the employment of temporary personnel and limited the power to authorise deviations from regulations. The Committee made no further comment.

Clauses 37, 38, 39:
Technical corrections were made to the clauses. The Committee made no further comment.

Clause 40:
Technical corrections were made to the clause. The Committee made no further comment.

Clause 43:
Included the corrections made to the short title. The Committee made no further comment.

Schedule:
The definition of Public Service was amended to include government components. Technical corrections were made to the clause. The Committee made no further comment.

Long Title:
The amendments were included in the new long title of the Bill.

Motion of desirability
The Chairperson read the long title of the Bill.

Mr Sikakane proposed that the Committee adopt the amended Bill. Ms Mentor seconded the proposal. The Chairperson signed the amended Bill.

Adoption of Bill
Adv Van Schoor took the Committee through each clause of the Bill, as amended.

The Enactment Clause, Clauses 1, 2, 3, 4, 7, 8, 9, 11, 13, 17, 19, 20, 21, 23, 24, 25, 26, 27, 30, 32, 33, 35, 37, 38, 39, 40, 43 and the Schedule
The Chairperson noted that the Committee adopted these clauses, with amendments.

Clauses 5, 12, 14, 15, 16, 18, 22, 28, 29, 34, 36, 41 and 42
The Chairperson noted that the Committee adopted these clauses, without amendments.

Clauses 6, 10 and 31
The Chairperson noted that the Committee adopted these new clauses.

Long Title
Adv Van Schoor proposed that the words “to provide for the implementation of the directions of the Public Service Commission” were inserted after “…Office of a Premier”;” in line 7 of the amended long title. The Chairperson noted that the Committee adopted the long title, with amendments.

The Committee passed the Bill.

Prof Levin thanked the Committee and said the Department was looking forward to implementing the Bill once it was enacted.

Mr Khumalo, Ms L Maloney and Ms Mentor thanked everybody that was involved with the amendments to the Bill.

[Members held an off-the-record discussion on the current strike by Public Service personnel.]

The meeting was adjourned.

Appendix A:

FRASER-MOLEKETI SPEECH ON PUBLIC SERVICE AMENDMENT BILL

Claims that the Public Service Amendment Bill, which is aimed at creating a single public service at national and provincial levels and allows for secondment of employees, was unconstitutional fell on deaf ears as the ANC used its parliamentary muscle to pass the controversial Bill yesterday.

Public Service and Administration Minister Geraldine Fraser-Moleketi dismissed allegations the Bill was a plot to centralise power. Rather, it was intended to improve the organisational and human-resource framework of the public service to enhance the state's capacity to deliver services more effectively, she maintained. The primary aim of the Bill was to improve the organisational and human-resource framework for the public service to address obstacles to service delivery.

The Bill was also aimed at ensuring easier day-to-day administration of the Act by addressing certain legal difficulties, clarifying several provisions, removing obsolete provisions and aligning the Act with other legislation, Fraser-Moleketi said.