PRESENTATION BY THE SOUTH AFRICAN NATIONAL DEFENCE UNION (SANDU) TO THE PORTFOLIO COMMITTEE ON DEFENCE ON THE SUBJECT OF THE DEFENCE BILL (B60-2002)
After careful consideration of the Defence Bill, SANDU submits that certain amendments and/or additions to the Defence Bill is of paramount importance in order to ensure that the Defence Bill is in line with the SA Constitution and in harmony with other legislation.
SANDU therefore tables the following submissions:
1. GENERAL:
a. This Defence Bill contains numerous sections that impact on the established labour rights of members of the SANDF. It is noted with concern that various "informal discussions" on this draft had taken place between the honourable committee and the Department of Defence, over a period of three years, without including SANDU in such processes, up to this point in time.
b. Various errors have been detected in the Defence Bill, such as:
i. References to the SANDF do not in all instances contain the word "National".
ii. The index contained in the Arrangement of the Act does not correlate with the numbering of the sections contained in the text of the Act. Up to section 75 the index is one number ahead of the text itself, whilst on pages 48 and 49 two different sections are both numbered 75. The Act contains no section 76 (the last section at the bottom of page 49 is not numbered).
iii. Section 65(7) contains a spelling error in the word "Act" which is misspelled to read 'Acxt".
iv. The labour rights of members of the SANDF, the exercise of such rights and the impact of this Act on members rights have not adequately been considered or addressed in this Act, which is probably attributable to the unilateral submissions from the Department of Defence, thus far. SAND U submits that the structures and processes pertaining to the exercise of labour rights of members of the SANDF should be incorporated into this act e.g. the functioning and powers of the Military Bargaining Council and the Military Arbitration Board, so as to prevent the manipulation of these institutions and their functions by the Minister and/or Department of Defence.
v. In this Act, provision should be made for the decriminalisation of labour related offences, as currently contained in the Military Disciplinary Code.
c. SANDU feels strongly that provision should be made in this Act for certain labour related issues to still be dealt with under the provisions of the LRA, similar to the provisions which were contained in the Defence Special Tribunal Act 81 of 1998. The latter Act provided that sections 151-166 and section 184 of the LRA (dealing with the establishment, composition, jurisdiction, procedures etc of the Labour Court) could be applied, and members could approach the Labour Court, in dealing with any disputes which arose from or were attributable to the implementation of transitional arrangements in respect of military institutions, or the rationalisation of the Department of Defence, and which is connected with the remuneration or any other conditions of service of an employee in terms of law regulation employment, or with any unfair labour practice by virtue of such law. Members of the SANDE and Military Trade Unions should therefore be allowed in this Act to approach the Labour Court, instead of the High Court, pertaining to issues of a labour related nature, but without the nexus of transitional arrangements or rationalisation being a pre -requisite.
2. CHAPTER 1 -Definitions:
a. 1(1)v. Insert the word "lawful" before the word "verbal". This insertion is in line with Section 2(e).
b. 1(1)xviii. Insert the word "lawful" before the word "written". This insertion is in line with Section 2(e).
c. 3(2). Are the exception contained in this section adequate, what about references to other legislation e.g. the Administrative Justice Bill, Promotion of Access to Information Act etc?
3. CHAPTER 2 - Department ofDefence:
a. 8(e). This section conflicts with section 14, because it compounds the problem which arises when the Secretary for Defence is empowered with more authority and powers than the Chief of the SANDF, pertaining to the management of the SANDF. The powers and functions of the Secretary for Defence and Chief of the SANDF are in conflict with each other and should be recorded in this Act as provided for in the RSA Constitution.
4. CHAPTER 3 Employment and use ofDefence Force:
19(4). Insert the word "National" before the word "Defence". Also at various other sections in this Act
CHAPTER 6 - Defence Intelligence:
37. It is an unfair labour practice to consider discharge as the only option, merely because a member of the SANDF's security profile does not suit the post in which he/she had been placed. A member who's security clearance had been denied, should be allowed to obtain the reasons therefore, in writing in order for him/her to challenge such decision at a proper forum, before discharge could even be considered. Also add the following proviso to this section 'subject to the notification and Review Board processes contemplated in Sections 38, 39 and 40 first having been completed".
b. 38(2). Insert the word "written" before the word "grounds". This insertion would be in line with the principles of administrative justice.
c. 40(1). Replace the references to section 37(4)(c) in order to reflect a reference to section 38(4)(c).
d. 40(2). Replace the references to section 37(2) & (3) in order to reflect a reference to section 38(2) & (3).
6. CHAPTER 8-Limitation
a. 49 (2)(b). The reference to polygraph tests should be deleted since SA law does not accept the outcome of such tests as reliable evidence and also does not compel a citizen to forcefully undergo such tests. It is not comprehended why a person should, by virtue of being in uniform, be compelled to subject him or her self to processes not recognised in law. This constitutes an infringement on the constitutional guarantee of equal treatment and equality before the law.
b. 49. A provision should be inserted in this Act, which compels the Minister or the Department of Defence to subject each and every regulation/order/instruction, based in this section, to the constitutional test of reasonability and justifiability, before promulgating and executing such, with due regard to the rights of members of the SANDF to negotiate matters of mutual interest.
7. CHAPTER 9 - Employment in Defence Force:
a. 54(1). Terms and conditions of service, as well as matters of mutual interest, should be included in this section in order to reflect the current labour rights, as contained in the General Regulations, Chapter xx, Reg 36 accurately.
b. 54(2). This whole section nullifies the existing labour rights of the members of the SANDF and the powers and functions of the Military Arbitration Board, as contained in Chapter xx of the General Regulations. The Minister of Defence cannot be allowed to finally determine the outcome of an arbitration recommendation in respect of salaries, pay and entitlements, in a dispute to which he is a party. It is also SANDU'S submission that the same processes be followed with such disputes, as been followed by other essential services.
c. 55(4). Insert the words "at the Military Bargaining Council" after the word "negotiated".
d. 56. This whole section takes members of the SANDF out of the scope of the Workmens Compensation Act. It disregards the rights that members enjoy under the current Compensation Act and there is a notable absence of the detailed schedules which are contained in the Compensation Act It is not comprehended why the department seeks to burden itself with additional administrative duties when an act of Parliament has already established an independent and effective institution for dealing with workplace related injuries and/or illnesses. This proposed Section furthermore creates the unsavoury situation that the Minister finally decides on whether an injury will be compensated, pertaining to a member under his service.
e. 58(1), (2)(a) & (1,). Terminations of service of members of the SANDF should be subjected to the same conditions/processes as applied in the rest of the Public Service, with due regard to the labour rights of members e.g. negotiations with organised labour concerning the impact of restructuring on the rights and interests of members of the SANDF.
f. 58(2)(c). This sub section disregards the expertise of medical professionals as well as the processes relating to medical discharges that are contained in Chapter xv of the General regulations. It is not clear who decides on the "unfitness or inability " or on what basis the decision is taken. This sub-section is not in line with the requirements of administrative justice or fair labour practices.
g. 58(2)(e). Insert the following phrase to the end of this section "…, with due regard to the provisions contained in sections 37,38 and 40 of this act".
h. 58(3). This section needs a similar qualification to those contained in section 53(3)(a) & (b) in order to comply with the principles of administrative justice. It also needs a similar qualification to those contained in section 53(7)(b) for the same reason.
i. 60(1) & (2). These two sub-sections do not reflect the substantial difference that exist between a redress aimed against another person who is subject to this act and a grievance relating to a workplace problem e.g. unfair labour practices. Provision should be made for these procedures to be negotiated with organised labour within the Military Bargaining Council.
j. 60(4). Extending the said period to three years should amend the reference to a period of two years.
8. CHAPTER 11 - Exemptions from, and deferment of, training and service:
a. 65(6)(a). Insert the words "Labour Court or Military Arbitration
Board" after the word "Republic"
b. 65(7). This sub-section should be amended as it allows the Minister to withhold relevant information that an applicant might be in need of in order to take the review board's decision on review, contradicting the principles of fair administrative procedure.
9. CHAPTER 13 - General administration and support:
a. 78(1). Add after the word "regulations" the following phrase "subject to section 54 of this act," The reason is, that various matters which are the subject of the Ministers regulatory powers are also matters which by law are subject to negotiations e.g. 78(1)(e), (h)(vi), (l), (n) and (m).
b. 81. This section makes no sense.
10. CHAPTER 16 - Boards ofenquiry:
a. 98(10). The reference to section 88 in this sub-section is incorrect section 88 does not deal with boards of enquiry.
11. CHAPTER 17 - Offences and penalties:
a. 100(6). This sub-section needs to be amended as it prohibits a member of the SANDF from revealing information pertaining to workplace related problems/fears/grievances to, e.g. his/her military trade union and revealing information to the applicable authorities regarding corruption/misconduct etc.
b. 100(11). This sub-section infringes on a person's right to freely enter into other contracts of service with other employees. It leaves the impression that old style conscription is being re-instituted.
To any of the sections not dealt with in this submission, SANDU reserves our rights to deal with such issues at a later stage at an appropriate forum.
We as organised labour call upon the Portfolio Committee on Defence to assist us and our members in securing fair labour practices, the establishment of a healthy and sound labour environment and sound labour relations in the Department of Defence, by the inclusion and protection of our rights and interests in this Act.
We thank you for the opportunity to table these submissions and we sincerely hope that these submissions will enable you to finalise the Defence Bill, for promulgation in the near future.
Please direct any enquiries to the head office of SANDU, tel (012) 323 6465, fax (012) 323 7767.
Yours faithfully (COR VAN NIEKERK)
NATIONAL SECRETARY: SANDU