Skills Development Amendment Bill: deliberations

Meeting report

The Chairperson noted the presence of a State Law Advisor to advise them during clause-by-clause deliberations on the Bill. She referred to the previous week’s proposal that they hold a joint meeting with the Portfolio Committee of Education. However, although that committee’s chairperson welcomed the proposal, it was too short notice to be accommodated into their programme. 

Mr Sam Morotoba, Skills Development Senior Executive Manager: DOL, referred to the Committee’s directive given to him the previous week, to establish if there were issues in the Bill that were in conflict with other legislation such as the National Qualifications Framework Bill. He had spoken to a colleague from the education department where they had gone through the comments that were made on that Bill and no differences were picked up.

Ms Kasienyane read through the long title of the Bill before she continued with the first clause:

Clause 1
Ms Kasienyane carefully read through the amendments to definitions in Section 1 of the Skills Development Act, 1998. Section 1(a) and 1(b) were accepted. They also accepted the newly proposed amendment to Section 1(c) that substituted a new definition for ‘National Qualifications Framework’. 

Ms Kasienyane read the Committee’s proposed amendment to Section 1(d) which deleted the definition of ‘Occupational Qualifications Framework’.

Mr B Mkongi (ANC) suggested that ‘occupation’ should first be defined before ‘occupational qualification’ could be defined in Section 1(d).

Mr Morotoba said that he would respond to that suggestion at later stage.

Ms Kasienyane read the Committee’s proposed amendment to Section 1(e). She asked Mr Morotoba what the intention was.

Mr Morotoba replied that something that was picked up by the legal team was to define ‘placement’ as “placing an individual in a placement opportunity with due regard to the Code of Good Practice on the Integration of Employment Equity into Human Resources Policies and Practices in terms of the Employment Equity Act, 1998 (Act No.55 of 1998).”

Mr Mkongi said that he had a problem with the term ‘placement opportunity’ as it meant any opportunity for work or learning, self-employment or business opportunity and was therefore an ‘exit opportunity’. He stated that ‘placement opportunity’ was an opportunity for work only.

Ms Kasienyane asked Mr Morotoba what the Employment Equity Act’s take was on the issue of ‘placement opportunity’.

Mr Morotoba said that he did not have the Employment Equity Act definition with him but that it was consistent. Normally when cases went to the CCMA, the definition that lawyers used was consistent with labour law. The only new thing that had been added to this definition was ‘and community services’. ‘Placement opportunity’ was in the current act and was not a new definition. Placement opportunity included when a person had finished learning, or was still learning, they could register at the Department of Labour. The placement opportunity that a person would get would be for training, referral for after-training, further learning opportunities (learnerships) or self-employment.

Mr Mkongi asked whether there was any place in the Bill that could include ‘exit opportunity’.

Mr Morotoba answered that there was no section in the Act that dealt with exit opportunity but perhaps he should consult with the State Law Advisor on how best to rephrase that statement.

Ms Kasienyane asked if there was any chance of rephrasing the statement to include ‘exit opportunity’.

Ms Koliswa Mdludlu, State Law Advisor, said one should look at the dynamics of including that term. They would have to sit down with the Department to see how it would fit into the Bill. She added that one would have to look at the repercussions and consequences that could arise and what the Bill seeks to do.

Ms Kasienyane agreed that it would be important to look at the consequences.

Mr M Mzondeki (ANC) said that it would be helpful to provide the definition of an ‘exit opportunity’.

Mr Morotoba said that ‘placement opportunity’ and ‘exit opportunity’ were synonyms for each other. However, ‘exit opportunity’ was limited as it suggested only people with completed learning. ‘Placement opportunity’ was used broadly and it even accommodated retrenched people who could register on the unemployment database and would be able to get a placement opportunity which could either be further learning, self-employment, a placement in a formal job or on projects as a youth volunteer. He suggested that he would confirm his explanation by conferring with the dictionary.

Ms Kasienyane asked members if they were satisfied, to which they were. She then said that there was no need to confer with the dictionary.

Ms Kasienyane then moved to the definitions in Sections 1(f ) and 1(g) which were both accepted by the Committee.

After reading Section 1(h), she asked whether or not there had been a submission by the Association of Private Providers of Education Training and Development (APPETD) on this.

Mr Morotoba referred members to the Department of Labour response document which he said was a preliminary response. APPETD wanted to include a clause in the Bill that would accommodate that training providers be registered under the Department of Labour rather than the Department of Education.They had initially indicated that they could possibly accommodate their proposal. However the Department had received legal advice that if an entity is registered as a company or a close corporation, they have complied with the law. A training centre operating in a company or close corporation, might not be able to be registered as a separate entity as it was part of that company. They were advised not to put in an obligation to register with the Department of Labour and that provider registration should be left as it is in the Act and leave the definition as is. A second issue was one would not want to create confusion where people would have to be registered with different departments. Also, the issue was more around accreditation and not necessarily registration. If registration was accommodated in this Act, it would need a whole new section and create further bureaucracy which was not appropriate. Registration was already adequately covered in other legislation. Unfortunately, providers would have to register with the Department of Education to provide training in FET and Higher Education.

Ms Kasienyane said that it was not necessary to deal with registration if it was dealt with elsewhere.

Ms Mdludlu said that the question of registration was dealt with in Section 14(i) of the National Qualifications Framework Bill. She said that there would be an overlap if anything was done in that regard.

Ms Kasienyane moved on to Section 1(i) which was accepted.

Clause 2(a)
The Chairperson read through this clause.

Mr Mkongi suggested that ‘training programmes’ should be replaced by ‘skills development programme’ in Section 2(1)(d). He added that in Section 2(1)(f), the words ‘education and training’ should be replaced by ‘skills development programme’.

Ms Mdludlu explained that in an amendment bill, if the words were in bold, then they were to be deleted; if the words were underlined, this meant that it was an insertion.

Mr Morotoba said that under 2(1)(d), ‘learnerships and other training’ was replaced by ‘learning’ programmes’ as learning programmes included learnerships, apprenticeships, internships and skills programmes. The same applied to 2(1)(f) where ‘education and training’ was replaced by ‘learning’.

Mr E Mtshali (ANC) asked how and where would one place those who were not qualified artisans or had no papers but were doing the job. He used the example of a driver.        

Mr Morotoba replied that under Section 28 of the Manpower Training Act of 1981, those people who completed military conscription, people who worked in factories or the South African Railways, were given artisan status. Furthermore, in terms of the definition, it was partly covered under ‘trade’. He added that it could be further dealt with in Chapter 6A of the Skills Development Act on Artisan Development.

Ms Kasienyane noted that it would be discussed at a later stage.

Clause 2(b)
The Chairperson read through this clause and asked for the purpose of replacing ‘by’ with ‘through’.

Mr Morotoba replied that the word ‘through’ was much broader in context. He added that in Section 2(2)(a), ‘establishing’ had been deleted.

Mr L Labuschagne (DA) raised his concern about deleting the word ‘establishing’ and questioned if the founding documents of those bodies would still exist. He said that it could be regarded as ‘disestablishing’.

Ms Mdludlu said that ‘through’ was an appropriate word as it defined an ongoing process. Furthermore, it made it a process of learning.

Mr Labuschagne was concerned around the legal issues of removing the word ‘establishing’ and asked whether the existence of the body would be affected if the word ‘establishing’ were removed.

Mr Morotoba replied that Section 2(2) was about how the purposes of the Act were going to be achieved and not necessarily about establishment. The purposes of the Act would be achieved through the list given in Section 2(2). The establishment of those institutions were dealt with in other sections.

Ms Kasienyane accepted the explanation and asked if there was anything else.

Mr Mkongi asked, in terms of consistency, whether it was serviceable to abbreviate SETA as the rest of the terms in the Section 2(2) list were not abbreviated. Ms Kasienyane also asked why SETA was abbreviated.

Ms Mdludlu explained that when the wording was too long, and acronym was used and said that SETA was defined in the Principal Act.

Mr Morotoba added that the National Skills Authority and the National Skills Fund were not written in abbreviation in the Principal Act.

Ms Kasienyane asked why ‘labour centre’ was removed from 2(2)(a)(v) and inserted into 2(2)(a)(vi).

Mr Morotoba replied that the idea was not to remove the ‘labour centre’ from the Act but to remove ‘labour centre’ under (v) and add a new provision because currently there were roles that the Department of Labour ‘provincial offices’ played and those roles were not adequately provided for previously in the Act. The Act also made reference to the Skills Development Planning Unit which was something that no longer existed because those were undertaken by the provincial offices and the ‘labour centres’. He added that the reason ‘of the Department’ was added was because there was confusion as there were all sorts of labour centres that were not necessarily from the Department.

The Committee accepted this explanation.

Mr Morotoba pointed out that Section 2(2)(a)(vii) to (xii) were new sections. Section 2(2)(a)(vii) was to cater for accredited trade test centres which was necessary because as the Manpower Training Act was being repealed. Provision had to be made in the Skills Development Act for trade centres.

The Committee accepted these new sections.

In Section 2(2)(b), Mr Morotoba pointed out that wherever ‘education and learning’ appeared in the Act, it would be replaced by ‘learning’.

The Committee accepted that amendment in the Bill.

Clause 3
Mr Morotoba explained the change in Section 5(1)(a)(iv). He said that the issue was regarding the relationship between the National Skills Authority (NSA) and the National Skills Fund (NSF). The NSA role was to advise the Minister on the allocation of subsidies from the NSF. The confusion that was created by the current formulation suggested that the NSA was seen as the accounting authority for the NSF. However, the NSA was only the advisory board and the Director General remained the accounting officer. The new formulation for the NSA was to advise on ‘strategic framework and criteria for allocation of funds’. The new insertion provided clarity.

Mr Mkongi asked if the NSA could be given executive authority for the NSF and if that would be a problem.

Mr Morotoba replied that the issue had been extensively debated. If the NSA were given that authority, then it would operate as a SETA. You would then have to establish it as a completely different body that did not have a policy role because there would be a conflict of interest if it advised the Minister.

Ms Kasienyane checked that members were clear on the matter before moving on to the amendment to Section 5(1)(c).

Mr Morotoba explained that the NSA reported to the Minister on the progress made on the implementation of the National Skills Development Strategy. The NSA as an advisory body on the implementation of the Act, should be free to advise the Minister on any aspect that relates to the implementation of the Act. Therefore they proposed deleting the words ‘in the prescribed manner’.

The Committee accepted the amendment. The Chairperson asked that the Committee be advised about any public submissions that were made on particular clauses as they consider them.   

Mr Morotoba explained the new Section 5(1)(dA) which clarified the relationship that was going to exist between the National Skills Authority and the Quality Council for Trade and Occupations (QTCO) that was to be established. This was so one did not find the two bodies trampling on each other’s toes.

Mr Mkongi wanted to know what ‘liaise’ meant in d(A).

Mr Morotoba replied that it was to liaise on occupational standards and qualifications. What the concern was about, was that one did not have SETAs operating on their own.

Mr Morotoba explained the new Section 5(4) in Clause 3. It clarified that Section 5(1)(a)(v) gave the NSA, as part of their function, the ability to make all the regulations under the Skills Development Act, except those regulations that required the Minister to consult with the QCTO or Productivity South Africa.

Mr Mkongi said that he accepted the response about (dA) but he was concerned about the relationship between the NSA and the QCTO.

Mr Morotoba said there was no provision in the current Act but in the South African Qualifications Authority (SAQA) Act, a provision was made that recognized the representation of the NSA in the SAQA Board. However, the SAQA Act would be amended in its entirety by being replaced by the NQF Act and it would mean fewer people on the SAQA board. The NQF Bill made provision for QCTO representation on the SAQA board.

Clause 4
Mr Morotoba said that a problem was picked up in the composition of the NSA. With reference to Section 6, subsection 1(b), the voting members should be six and not five. The reason that it should change to six was because in the composition of the NSA, there was no representation of the QCTO. He pointed out that it was an error in the Amendment Bill and that the five should have been a six.

The Committee accepted the newly proposed amendment.

Mr Morotoba added that a new subsection (h) was added to Section 6(2): “a non-voting member nominated by the QCTO and appointed by the Minister.” This was added on to the current composition on the NSA.

Mr Mkongi wanted to know what was the rationale for a non-voting member.

Mr Morotoba explained that non-voting members were members who had expertise and who would be appointed by the Minister. The idea was to allow the key social partners, when it came to matters of policy, to be able to debate on those matters. However, they were excluded from voting as they could be placed in a compromising position because should they vote, they would first have to get consensus from their organisation, and it would also suggest that they would owe allegiance to a particular party.

Mr Morotoba noted that under Clause 4(c) of the Amendment Bill, paragraph (e) had been inserted into Section 6(3) so as to include the ‘education and skills development providers’ because currently they were voting but they were excluded from the executive committee.

Mr Mzondela asked what was an ‘education and skills development provider’.

Mr Morotoba said that in (e) ‘education’ should be omitted and it should only be ‘skills development providers’.

Mr Morotoba said that in Clause 4(d) the issue was to change the term of office from three to five years. The rationale for the change was because of serious problems of alignment. The strategy that was normally developed was for a period of five years to be in line with the term of government. The lifespan of a SETA was also five years. There was also an extension so as to put a cap on a term that a member may serve.

Ms Kasienyane questioned the use of the word ‘may’ instead of ‘must’. She said that it did not stop a person from continuing to extend their term.

Mr Morotoba agreed with Ms Kasienyane and said that they might need to consult with the State Law Advisor.

Suggestions that came up were ‘shall not’ or ‘must not’. Ms Mdludlu said that they were moving away from the word ‘shall’. “May not” was a clear directive to serve not more than two consecutive terms of office.

Mr Mkongi said that language should not be used that was open to loopholes as government could be taken to court.

Mr Morotoba said that in Clause 4 (e), they had forgotten to underline certain new words that were being introduced. There was a new insertion of “chairperson” whereas the previous word was only “member”. The word ‘chairperson’ had to be underlined and “within 90 days” had to be underlined. The reason a time limit was given was to allow respective organisations to replace their members within a given time.

Afternoon session
Clause 5 – Amendment of section 10 of Act 97 of 1998
The Committee considered the amendments and accepted them.

Clause 6 – Substitution of section 16 of Act 97 of 1998
The Committee considered the amendments and accepted them.

Clause 7 – Amendment of section 17 of Act 97 of 1998
The Committee considered the amendments and accepted them.
 
Clause 8 – Substitution of heading to Chapter 6 of Act 97 of 1998
The Committee considered the amendments and accepted them.

Clause 9 – Substitution of section 22 of Act 97 of 1998
The Committee considered the amendments and accepted them.

Clause 10 – Amendment of section 23 of Act 97 of 1998
Ms A Dreyer (DA) posed a question of clarity regarding Clause 10(2)(d). She wanted to know if the term workers were inclusive of those who were seeking work, that is, work-seekers.

Mr L Labuschagne (DA) confirmed that in terms of the Act, the term worker was inclusive of work-seekers.

The Committee accepted the changes contained in Clause 10 of the Amendment Bill.

Chapter 6A – Artisan Development – Insertion of sections 26A to 26M in Act 97 of 1998
The Committee accepted the amendments contained in new Chapter 6A of the Amendment Bill.

Chapter 6B – Skills Development Institutes – Insertion of sections 26A to 26M
The Committee considered new Chapter 6B of the Amendment Bill. There was a proposal to delete the words ‘as prescribed’ in Clause 26E. The Committee did not reach consensus on the change and agreed to flag this clause. Other than that, they accepted all other clauses.

Chapter 6C – Quality Council for Trades & Occupations – Insertion of sections 26A to 26M Clauses 26F, 26G, 26H and 26I as contained in the Amendment Bill were considered and accepted by the Committee.

The Committee considered the changes contained in Clause 26J. They did not complete their consideration due to pressing time constraints.

The Chairperson suggested that the meeting continue the following morning and the Committee members agreed.

The meeting was adjourned.