SUBMISSION TO THE PARLIAMENTARY PORTFOLIO COMMITTEE ON EDUCATION BY THE SAOU

IN RE THE EDUCATION LAWS AMENDMENT BILL , 2000 ( ' ELA ' )

We wish to thank the Portfolio Committee for the opportunity to appear and
address them on this matter .

COMMENT : 4
Ad para 1
[ Amending Section 4 of SAQA ]

Further insert:
" ...... national organisations representing organised labour in the
Education Labour Relations Council ....... "

Ad para 3
[ Amending Section 16 of SASA ]

Further amend
"....... which period shall not exceed 6 months ....."

Ad para 4
[ Amending Section 20 of SASA ]

Note : The insertion is ambiguous insofar as it does not indicate what
exactly the HOD can do - It does not indicate if the HOD can either
determine ' reasonable use ' or ' fair conditions ' or perhaps both ?

Insert :
" ..... conditions , both determined by the HOD ........ "

Ad para 5
[ Amending Section 23 of SASA ]

$ Note : The SAOU has no principled objection to the democratisation of
school governing bodies .
$ The methodology employed is perhaps less than ideal , and will create
unnecessary tension .
$ We have little doubt that the effect of the current wording will be that
the governing body will be called upon to determine the racial > group > of
learners in order to proceed with this injunction - something that has
every potential to create tension rather than alleviate same .
$ It is our experience that the real difficult school-management issues are
hardly ever grappled with at this level , but that it is rather delegated
to the school Principal - who is often our member .
$ This wording is likely to also require a Principal to distinguish
between different language groups further complicating the picture .
$ We are particularly averse to the idea or even the creation of a
perception , that Principals ( who are union members ) , will be forced to
make decisions in respect of race - without doubt , with no or little
support or guidance from the Employer.
$ The suggested amendment negates the freedom of choice of the parents whom
voted in the SGB elections in the first place .
$ We suggest that the matter be completely excised from the draft proposal
and fully debated in the ELRC .

Amending :
"...... A determination relating to the representivity must be made in
consultation with the HOD or his delegated representative every six months
after the initial election of the School governing body ....... "

Ad para 6
[ Amending Section 61 of SASA ]

"..... to provide and fund ....... "

Ad para 8
[ Amending Section 6 of EEA ]

$ Note : Subsection ( ii ) included in the Draft can clearly not be correct
in the case where existing Colleges or Schools attain 'FET- institution'
status .
$ The proposed amendment as it stands is open to an interpretation that
renders the whole of the existing establishment at such a
' transformed ' institution potentially jobless

Inserting :
"........ to any post on the educator establishment must be made by
transfer or secondment by the HOD .......... "
" ........( iv ) The relevant governing body shall after the publication
and timeous circulation of an open vacancy list in the Province , clearly
specifying the requirements for the posts and requiring applications of
all interested educators make the necessary recommendations ....... "

Ad para 11
[ Amending Section 17 of the EEA ]

* Note : The SAOU can understand the necessity to act against educators
that commit serious transgressions in the workplace , but doubts the
necessity to legislate for compulsory dismissal . A valid question of
lawful limitation arises from the interpretation of the Constitutional
right to fair labour practices , and the balancing thereof with the other
Constitutional ( ? ) rights the lawmaker seemingly wants to protect by this
inclusion
* The problem with public perception about the educator corps does not only
lie with the individual , but also with the Employer .
* The Employer , as it stands , has all the necessary tools at hand to
exercise discipline - but fails to do so because of reasons known only to
itself .
* Legislating something that is clearly oppressive is not the answer .

Amending :
"....... An educator commits dismissable misconduct and may be dismissed
if ....... "

Ad para 12
[ Amending Sections 18 - 24 of the EEA ]

$ Note : The suggested change is worded in general and broad inclusive
terms This extends, rather than limits the basis for disciplinary action
against educators .
$ In line with the idea of a progressive or cumulative approach to
discipline , the whole of the section should be qualified to refer to
matters or incidents relating to the workplace or linked to the employment
situation .

Ad ( a )
$ Note : The wording of the section implies that a negligible transgression
outside of the working relationship , such as a fine for a parking offence
or the transgression of a by-law on zoning of property , could form the
basis of a disciplinary hearing !

Amending :
" ....... or legal obligation negatively affecting the employment relationship ..... "

Ad ( f ) :
"....... or adult learning centre ; to an extent that negatively affects the employee , employer relationship ..... "

Ad ( cc )( ii ) :
$ Note : This paragraph needs to be compared to and brought into line with
the standard set by the Employment Equity Act . 5

Amending :
"....... As contemplated in item 3(3) of Schedule 1 , and subject to his/her rights in terms of the Employment Equity Act , 1998 ....... "

Ad Schedule 1 :
* Note : Both the Codes ( poor performance and ill health ) , lack a clear
indication of the procedure to be followed .
* It would be better in our opinion if the employer keeps to the standard of a formal enquiry , as set out in Section 16 of the EEA as it currently exists .

Ad " Procedure in respect of poor performance "
Ad item 4 ( b ) ( v ) :

* Note : Termination should only follow after an opportunity to interact with the ' opinion ' formed by the employer that the educator has not met the ' required performance standard '
* We suggest a formal hearing , underpinned by the generally accepted basics in such a situation , such as :
* The opportunity to hear the ' charge ' ,
* The opportunity to answer thereto ,
* The production of documents and evidence as the case requires .

Ad Schedule 2
Ad item 4 - " Sanctions and disciplinary procedures pertaining to less serious misconduct cases "
Ad 4 ( g ) ( i - ii ) :

* Note : The idea of disciplinary action short of dismissal being final is difficult to understand .
* We suggest the approach followed in the Labour Relations Act , 1995 , 6 whereby such actions are subject to moderation by a tribunal of sorts . In this case it should lead to a right of ' appeal ' through the ELRC dispute resolution mechanism .

Ad item 4( 5 ) ( g ) ( i - ii ) :
* Note : The same as above - here in respect of final written warnings .

Ad item 4( 6 )( d ) ( i - ii ) :
* Note : The same as above - here in respect of the ' informal disciplinary
process ' .

Ad item 4 ( 6 ) ( b ) ( i ) :
* Note : The requirement that the educator only be represented by a trade
union representative at the institution , is unhelpful .
* There are some 27 000 schools - no union has representatives in each
institution ?
* The inclusion effectively renders the individual unrepresented with the
possibility of a final written warning being issued ( to wit he/she may not
appeal ! ) .

Ad item 5 " Notice of enquiry for misconduct cases other than those
contemplated in item 4 "
Ad 5 ( 2 ) ( d ) :

Note : Clarity should be given once and for all concerning the understanding of the word ' representative ' , and whom it includes . 7 or excludes .