TECHNICAL COMMENT

SAOU - PRESENTATION TO THE PORTFOLIO COMMITTEE ON EDUCATION ( NATIONAL ASSEMBLY )
13 August – Cape Town
Concerning the 2002 Education Laws Amendment Bill
COMMENT
EDUCATION LAWS AMENDMENT BILL

[ The numbering of paragraphs in the gazette is used / referred to ;
Paragraphs / changes not referred to were found acceptable ]

The union is appreciative of the opportunity to have rendered comment initially when the Bills were published .

We note that a number of the technical suggestions were incorporated in the final product .
Para 1 :

The initial comment of the union is captured here :

The union is of the opinion that the absolute terms used does not assist . We argue that the lawmaker should build in a discretion at the appropriate level to allow the exercise of a discretion in waiver of the strict rule .

( The same applies to Para 6 ) .

We suggest that the Bill as it stands , although it contains the requisite flexibility , in sub-para (d) ( i – ii ) again reverses the flexibility by burdening the potential ‘applicant’ with onerous administrative law type requirements .

( The same applies to section 7 )
Para 3 :

The union originally commented as follows :

The lawmaker should include , or by means of regulation , arrange the aspects a SGB should consider when an intermediary might be necessary , in order to obviate the creation of a new basis for unnecessary judicial review applications .

( The same applies to Para 9 , part 2 )

In the final Bill [ B-2002] the section requires accompaniment , by the parent or accompaniment by a person designated by the parent , at a disciplinary hearing .

The section should surely be further qualified to refer to the legal guardian , or a person designated by him/her , of the learner .

The section should further determine a time period wherein the persons vested with these rights , should react , or make their wishes known , whereafter the matter should be able to continue without them .

The scope for abuse is obvious – if the person vested with these rights does not react , or elects to proceed in a dilatory manner the whole proceeding will be rendered ineffectual .

Para 4 :

The union initially commented as follows :

A clear definition of initiation practices should be included in the SASA itself – especially to ensure that a distinction is made ab initio between initiation and induction .

The second part of the section is unclear – if the intention is to only ‘regulate’ the position in respect of employees – the section makes sense – if not the reference to misconduct and disciplinary action needs to be amended to a more general wording .

Although the final Bill has included a full definition of the actions falling under the description of ‘ initiation practices ‘ ; It still seems as though the first two sub-paragraphs only refer to educators ( being the ‘persons’ whom the Employer could take disciplinary steps against ? ) – and the rest of the changes seem to refer to any , or all person(s) ?

Para 5 :

The union initially commented as follows :

In the description of what the code of conduct must accomplish, the scope must not be circumscribed to narrowly – It will probably be more helpful to mirror the aspects or rights delegated to SGB’s in sections 20 & 21 of SASA

The suggested amendment does not make a distinction between the employee and other members of an SGB . This exposes employee ( educator ) members to a potential double jeopardy .

This union suggests that the actions of educators are very well ‘ sanctioned ‘ by the existing wording of sections 17 & 18 of the Employment of Educators Act , 1998 .( EEA )

We submit that the comment still stands .

Para 8 :

The need for specifically enabling clauses to make regulations cannot be argued away . We would however urge the employer to consider educator rights in the development of ‘ safety measures’ in schools , as previous discussions have heavily leaned towards only covering learners .

The employer has a clear obligation to ensure a safe workplace .

Para 9 :

We are yet to see a yearly Amendment Act , that does not in one way or the other seeks to alter the roles or rights of SGB’s ; the problem with this in the context it is done is the fact that it also impacts directly on the lives of our educator members .

In the explanatory memorandum the reason for the changes are given to be the PED’s ability to ‘…….. better position to distribute these educators …….. " ; and continues to deal with bursary holders .

The perceived problem could as easily have been addressed by proper application of section 6(3)(d) of the EEA , 1998 - The section allows the PED to act if no recommendation is made , by making an appointment .

Bursary holders could equally be dealt with by specific reference to the right of placement by the PED , where a person is a bursary holder , thus limiting the scope of an amendment to where the explanatory memorandum tells us it is aimed ?

Taking away rights from SGB’s as if they are the reason for the rural areas not being the favorite of new applicants , seem a bit odd – the simple solution would be to allow the targeted applicants to apply for posts advertised in a gazette dealing with ‘rural’ posts ?

An SGB is as much a part of the education landscape as the educators themselves – The constant tinkering with the relative position of the SGB creates uncertainty , and suggests a fundamental flaw in the social compact between state and parent in the running of schools . This is not in the interests of education as a whole .

The interests of our educator members will be better served by the two groupings in one way or the other , gaining a definitive understanding of each other’s role and position and then continuing onwards .

Para 10 :

The employer has been unable to secure agreement with the educator unions on performance standards . The deceptively easy way of solving the problem by means of legislation or regulation is the worst kind of undermining of the process of collective bargaining .

The employer has created a multiplicity of instruments , such as the Continuous Assessment system ( CASS ) , Whole School Evaluation ( WSE) , The Developmental Appraisal System ( DAS ) , and a separate assessment of office bound employees .

To extricate oneself there from this by legislation is tantamount to admitting defeat .

We urge the employer to return to the negotiations table !