NEHAWU SUBMISSION

ON THE HIGHER EDUCATION AMENDMENT BILL

(B 30 - 2002)

(amending the Higher Education Act No 101 of 1997)

Presentation to the public hearing convened by the Portfolio Committee on Education at Parliament

20 August 2002

**** TAKING A LEAD IN BUILDING A BETTER LIFE FOR ALL ****

Our submission must be seen against the background of our submission on the Higher Education Amendment Bill in August 2001, and the ongoing bi-lateral discussions that have taking place with the Ministry since then. These have shaped our approach to the 2002 Amendment Bill.

Since our last submission, we have engaged with the National Working Group (NWG) Report, released on 11 February 2002, as well as two policy documents from the Ministry on a "new institutional landscape for Higher Education" as well as "transformation and reconstruction of higher education".

Our concerns on the NWG report, which we released on the 15 February 2002, were in summary as follows:

• The report presented its recommendations as if there were no political and ideological considerations, which underpinned its recommendations.
• Where stakeholders had made inputs to the NWG, these had been noted but content of these inputs was not reflected in the recommendations.
• Reluctance by the Ministry to negotiate the National Plan in NEDLAC despite the fact that the Plan has socio-economic implications.
• The implications on human resources of mergers, incorporations and closures. In addition to ensure that section 189 and 197 of the LRA and in particular the spirit of the proposed new amendments to the LRA was being upheld and respected. The absence of a human resource plan remained a major concern of Nehawu, since the threat of job losses was not addressed in the NWG report.
• The issue of equity being reduced in the report and relegated to the new system to work out, instead of addressing it through the recommendations. In addition access for the working class to Higher Education was emphasised on the race of the first year intake to HAI’s as a yardstick for differentiation. The broad goals of equity as outlined in the recommendations contained no proposal on how to address equity in terms of class.
• Along with many other stakeholders we raised our concerns that the recommendations simply re-organised institutions on the basis of perceived deficiencies of the HDI’s.
• Another long standing concern we raised, which dates back to the CHE shape and size report, was the lack of a value system for higher education. This we argued, was necessary to underpin the development of a critical mass of intellectuals, whose outlook towards the developmental needs of the majority in the country and the developmental goals of a state should be an end result of training in the higher education system.
• That financial considerations with a focus on savings and financial efficiency have driven the recommendations, and elevated above other areas of efficiency such as academic efficiency.

The interim period between the release of the NWG report and the submission that was put before Cabinet by the Ministry, enabled stakeholders to put forward their recommendations on the NWG report.

There was consensus on the need to transform the higher education landscape. Issues that remained unresolved at this stage included;-

• That HDI institutions in the main were to bear the brunt of restructuring on the basis of perceived deficiencies.
• Issues of access, especially the disparity between HAI and HDI admission policies and fee structure.
• The lack of a human resource plan and the real prospect of job losses.
• Financial efficiency as the main benchmark for restructuring.
• Financial and human capacity to implement proposals

Following the deliberations of cabinet the proposals for merger were gazetted in July, and allowed for a three month period for public comment. Nehawu welcomed this window that has been created, as it created the space to put into process those issues which required greater engagement. In summary the main proposals from cabinet were as follows:

• That there is a role for the HDI’s both in this period of transition as well as a future South Africa.
• That there is a need for curriculum transformation for all institutions of higher education and that this will be subject to a national conference to be convened on curriculum reform in higher education.
• That a new funding formula based on the principles outlined in the white paper on the transformation of higher education would be introduced.
• Access to higher education. The proposals look at reviewing access to higher education so as to ensure that fee structure and admission requirements do not impact negatively on access. This will include a review of the National Student Financial Aid Scheme. Three institutions will be made accessible for students who are physically challenged, and all institutions will have to develop regional strategies for accessibility.
• The revolving door syndrome is to be addressed through promoting mobility between and within institutions and qualifications.
• That transformation does not necessarily mean mergers, but can take the form of regional collaboration between faculties.
• Our engagements with the Ministry during the NEDLAC process have also lead to an agreement that the Ministry will facilitate a national framework for Human Resources, and the criteria and terms of reference are currently being worked on.

Whilst the Ministry has attempted to take into consideration concerns from stakeholders, there are a number of issues that will need to be dealt with in this period of transition. These are raised in the context of this amendment bill as they may have consequences at a later stage. These are in the main in three (3) areas :-

• The distinction between merger and incorporation.
• A National Framework on actual mergers.
• National Framework on Human Resource implications of mergers.

Our comments only relate to those clauses and sub-clauses where we propose changes. Where the submission is silent on a clause or sub-clause, this denotes support for that particular clause.

The Bill does not refer to the LRA as amended. In particular the consequences of the Labour Relations Amendment Act 12 of 2002, enacted on the 24 June 2002, has implications in particular for clauses 4 and 5 of the Amendment Bill. Our recommendation would be that wherever there is reference to the LRA of 1995, this should be amended to read the Labour Relations Act as amended.

Proposed Amendment:

Insert after the word "merged":

During the process of the restructuring of higher education that is currently underway, the question of incorporation of institutions of higher education has come up. In particular, the question of whether section 197 of the LRA refers to incorporations of institutions or not has been a point of debate.

This in the main refers to Vista institutions, since in terms of the recommendations these will be incorporated into the closest higher education institutions.

In order to ensure that there is no ambiguity, and to cover those cases where incorporations still have to take place, the Amendment Bill needs to make provision for this. If not, we will be faced with a situation of having to bring another amendment before parliament to deal with disputes that may arise out of the process of incorporation.

Proposed Amendment:

Delete: [notwithstanding]

Insert: subject to

Notwithstanding in effect means "despite". Given that clauses 4 and 5 of the Amendment Bill will be used extensively during discussions between the employer and employee unions, absolute clarity needs to be given so as to ensure that there is no difference of interpretation on specific wording. As it currently stands it is open to interpretation.

Secondly "notwithstanding" seeks to circumvent the LRA, in that it acknowledges that there is currently a dispute on section 197 of the LRA.

After hearings in the Labour Court and the Labour Appeal Court, the case has now been referred to the constitutional court.

At the centre of this dispute, is whether contracts of employment in terms of section 197 of the LRA can be transferred with or without the consent of the employee. Flowing from the current legal process we argue that it is a final judgement in this ongoing process that must give clarity to the interpretation of section 197, and not a clause such as "notwithstanding".

Delete: [without employee’s consent].

Insert: with employee’s consent

Again this has been at the heart of current dispute between Nehawu and UCT, which has been through a long process in the courts. During the Labour Appeal Court stage, a majority and minority view were expressed. The Judge President’s view was that section 197 (2) provides for the automatic transfer of contracts of employment from an old employer to a new employer when a business is transferred as a going concern.

The view of the majority was however different, in that 197 only applies where the "old" employer and the "new" employer have agreed that such a transfer should take place.

On the basis of the majority judgement, section 197 only comes into operation where the transferor and transferee wish the services of the employees to accompany the transfer of portion of the business. If they do not so wish, then the section has no application.

Given this above scenario, and the fact that the matter is still sub judice, since it is on its way to the constitutional court, it would be manifestly wrong for the amendment bill to take sides at this given point in time.

The only interpretation that can be effective at this stage is the one that has been currently in operation under 197. In the light of this we argue the wording be changed.

Disciplinary codes, rules and procedures are generally subject to joint decision making between employers and employees. With a merger or declaration, new codes/procedures are likely to be implemented. It is important that employees are given the opportunity to participate in the process of developing these. Since the amendment bill does not set out the procedure for developing these, we have proposed an amendment to this sub-section.

Insert: line 38 at the end of the sentence:-

[Delete entire sub- clause]

This sub-clause makes a mockery of the ongoing bi-lateral discussions between stakeholders and the ministry. In addition the process in NEDLAC can be seriously undermined through the insertion of this sub-clause.

It further undermines the work of the ministry who are currently facilitating a national framework for Human Resources, and drafting criteria and terms of reference.

Proposed Amendment

Delete: [notwithstanding]

Insert: subject to

Notwithstanding in effect means "despite’. Given that clause 5 ( c ) sub section 2 will be used extensively between employer and employee unions, absolute clarity needs to be given so as to ensure that there is no difference of interpretation on specific wording. As it currently stands the wording is open to different interpretation.

By using the word notwithstanding, it seeks to circumvent the LRA, in that it acknowledges that there is currently a dispute which is in process to the constitutional court.

At the centre of this dispute, is whether contracts of employment in terms of section 197 of the LRA can be transferred with or without the consent of the employee. Our argument is that the due legal process must be completed on the correct interpretation of the LRA, and that the amendment bill should not be used as a tool to be prescriptive.

Insert after "merged":

This is to make provision for those instances where there are no mergers but incorporations of institutions into the nearest higher education institution, as is the case of Vista universities. This motivation is applied to different sub-clauses under clause 5, and are indicated below under the respective clauses.

Delete: [without employee’s consent]

Insert: with employee’s consent

Again this refers to the ongoing legal case between Nehawu and UCT and the implications for all future cases of transfer of contract under section 197 of the LRA.

What we have stated under Clause 4 (5) (a) lines 16/17, equally applies under clause 5 (2A). The fact that the matter is still sub judice, calls into question the use of a particular interpretation in the amendment bill of section 197. With the eventual outcome of the legal process still in the balance, and given that this section deals with mergers and incorporations, we would argue that it is best to adopt a pragmatic approach which would ensure full consultation on these delicate areas of transforming the higher education sector.

Insert after "merged":

Insert after "merger":

Insert after "merger":

Insert: At the end of the sub-clause the following:

Disciplinary codes, rules and procedures are generally subject to joint decision making between employers and employees. With mergers or incorporations, new codes/procedures are likely to be implemented. It is important that employees are given the opportunity to participate in the process of developing these. Since the amendment bill does not set out the procedure for developing these, we have proposed an amendment to this sub-section.

Delete: [entire sub-clause]

The insertion of this sub-clause undermines the ongoing bi-lateral discussions between stakeholders and the ministry. In addition the process in NEDLAC can be seriously undermined through the insertion of this sub-clause. It undermines work that the ministry is currently undertaking on facilitating a national framework for human resources with all stakeholders. In this respect the sub-clause is pre-emptive.

Insert after "merged":

Insert after "merger":

Insert after the words "merger":