In brief our input on the main amendments can be summarized as follows:

In line with the Freedom Charter and the goals of Peoples Education, SADTU is committed to the goal of free quality public education for all and our comments on the proposed changes to the norms and standards should be read with this in mind. In particular the union is opposed to the user fee system for reasons including the following:

We believe that the present user fee system undermines nation-building and is socially divisive - and SADTU will continue to campaign against it.

As the largest teacher union - with 220,000 members - we are mindful that it is important for the union to engage with proposals from the Department of Education - even where we have doubts about the underlying principles and parameters. With this said, our broad overview of the proposed amendments is elaborated below.

SADTU welcomes the new and additional definitions inserted in the Bill which clarify the definition of school fees and lay the basis for a major shift from a provincially based to a nationally based system of norms and standards for school funding. Although the present system of non-personnel, non-capital funding norms is pro-poor resulting in a significant redistribution of resources towards poorer schools, the present system does not take account of major inequalities between provinces.

The construction of a national poverty table for resource targeting and the establishment of an adequacy benchmark for per learner funding in theory makes possible the reduction of current inter-provincial inequalities with regard to school funding and provides the data to ensure that resources are targeted where they are needed most.

The notion of an adequacy benchmark level of funding per learner also marks an important conceptual advance in the funding system which hitherto has been driven solely by budget and financial considerations. The new approach suggests a shift towards needs-based funding and is predicated upon the question: what resources are needed to ensure a quality basic education?

A concern however is that the process of calculating the adequacy benchmark level should be open and transparent. The factors which constitute the adequacy level benchmark must be open to public debate and subject to scrutiny and verification.

Another long-standing concern has been the way that poverty ratings are calculated which leads to problems where, for example, schools located in wealthy areas but effectively serving poor communities are placed in one of the least poor quintiles.

SADTU supports the objective of this amendment to expedite disciplinary procedures for learners.

In the process we believe it is vital to safeguard the rights of all parties -the individual learner and the rest of the school community. We support the right of every child to receive education - even during a disciplinary process. At the same time schools have the right to expect that the Department of Education will give them support in coping with disruptive learners.

The amendment to 5 9(1) of SASA provides that the governing body may on reasonable grounds and as a precautionary measure suspend a learner who is suspected of serious misconduct from attending school, but may only enforce such suspension after the learner has been granted a reasonable opportunity to make representations to it in relation to the suspension.

While we recognise that the requirements of procedural fairness in administrative actions require that the affected party be heard before a decision is enforced against him or her, particularly where the decision could prejudice that party, there may be circumstances where a precautionary suspension may need to be enforced before the learner is granted an opportunity to make representations. For example, what if the learner was violent and threatened the safety of other persons. Surely a precautionary suspension (as opposed to a sanction involving suspension) for a short period pending the opportunity to make representations is called for and legitimate in such circumstances?

It should be noted that in labour law precautionary suspensions of employees (which are usually without loss of pay or benefits) do not require the employer to provide the employee with an opportunity to make representations, whereas if the suspension is a sanction the right to be heard must be granted first before it can be imposed.

The enforcement of precautionary suspensions without the right to be heard for a limited period of time should be allowed in certain circumstances and we suggest that it be strictly regulated by giving the Minister of Education the power to publish regulations about precautionary suspensions.

SADTU supports the broad thrust of these amendments which seek to establish national quintiles and national norms for minimum funding of poor schools.

However, certain concerns remain. In particular, the national approach to quintiles and poverty targeting implies a shift of resources to the poorer provinces. It is not indicated how this will take place. Our fear is that poorer provinces might only be able to achieve the adequacy benchmark level for a small percentage of schools and consequently would only be able to declare a small number of non-fee paying schools. This is a grey area which needs to be addressed.

It is surely inconceivable that the proposed policy could be differentially implemented across provinces - some declaring non-fee schools, others not. This has to be implemented nationally with the necessary resources made available. Otherwise the current inter-provincial inequalities will remain, and equally poor schools will continue to be unequally funded.

There may be other unforeseen outcomes - that the non-fee paying schools become oversubscribed, and neighbouring fee paying schools suffer accordingly.

Implementation would need to be carefully monitored to ensure the changes do impact equitably on poor schools.

We also question why national norms and minimum standards for the funding of public schools are determined only after consultation with the Minister of Finance (and others). This implies that these minimum standards are again to be determined by budget considerations rather than educational criteria.

The amendments to section 39 (a) are important to ensure the rights of poor parents who are eligible for partial or total exemption from paying fees. The Department of Education needs to take strong measures against governing bodies which deny or discourage poor parents from accessing these rights. The powers of SGBs to pry into the private affairs of poor parents should also be clearly defined to limit the humiliation associated with means testing.

The provision that school budgets must take account of non-payment and exemption from fees whilst realistic may also have the unforeseen consequence of establishing an unofficial 'poverty quota' as former model C schools determine in advance the number of non-fee paying learners they can admit. Would this be legal as it implies excluding some learners on the basis of their inability to pay?

We also welcome the tightening of the definition of school fees to prevent add-on expenses for parents. Such add on fees have had a discriminatory effect, excluding poorer learners from extramural activities and certain areas of the curriculum.

The provision that the Minister must annually determine the national quintiles for public schools which must be used by the MEC to identify schools that may not charge school fees is problematic. Whilst we support the intention to alleviate pressure on schools in poor communities, we have a number of concerns. In particular the condition that such a determination can be made "only if sufficient funding, not less than the adequacy benchmark level of funding per learner, has been secured" is problematic in the following ways:

SADTU welcomes the amendment but we do not think it goes far enough. Whilst it is an advance that the family home of a fees defaulter cannot be attached, there is nothing to stop the attachment of personal items, furniture etc. More important, items required to sustain the livelihood of the family - machinery, tools or a vehicle for instance, could also be attached.

In our view schools and governing bodies should not be in the business of debt collection, full stop. This is socially divisive and detracts from the core educational and social programmes that SGBs should be concerned with.

SADTU wholeheartedly supports this insertion. Governing bodies -particularly in the former model C schools - need to be reminded that these resources are public property and that they are custodians only. This is important in the face of ideological attacks from the neo-liberals on all forms of public property and public provision.

SADTU is concerned that the powers of SGBs - particularly in the privileged former model C schools - have been used to subvert and oppose national policy on education transformation and employment equity. We also believe that government and the education authorities must have a legitimate say over the use of public funds used to employ teachers. We believe that the proposed amendments, which take these factors into account, also make provision for the full involvement of; and consultation with, school governing bodies.

In general, the amendment to S 6(3) should be welcomed, as it will streamline the process of appointments, including promotions. It will mean that the provincial departments of education can act more speedily and decisively with regard to the appointment of educators. The provincial departments of education do not only have the interests of the particular institution in mind, but also the national interests of education and its transformation.

At the same time the amendments have carefully guaranteed that the governing bodies of public schools and council's of Further Education and Training institutions are provided with sufficient opportunity to be consulted and to lodge objections to the decisions of provincial departments of education. In this way the voice of the parents and other stakeholders represented at the particular institution will be heard. In accordance with the principles and requirements of administrative law their views will have to be considered and any decisions by the provincial education departments must be reasonable.

5 6(3) therefore tries to balance these two imperatives: making sure that the stakeholders at an institution have their rightful say and that their views are considered, and, the efficient administration and transformation of the education system.

We believe that the drafting of the amendment to S 6(3) could be tightened and there are a number of gaps that should be filled.

However, the strict time periods and the granting of rights to the Head of Department to make decisions in the event of a tardy governing body or council, which takes more than two months to make a recommendation, are welcome and will speed up the efficiency of the appointment process without forsaking the governing body's or council's opportunity to make recommendations.

The question that should be debated is whether a similar process of appeal, as is open to the governing bodies and councils should not be open to educators who contest the fairness of a promotion in terms of 5 1 86(2) of the Labour Relations Act. Often when an educator contests the fairness of a promotion after the Head of Department has made an appointment there is a lengthy dispute at a school, which detrimentally affects the proper functioning of the school. Moreover, because the appointment has been made, even if a complainant has a valid complaint he or she is precluded from being appointed and his or her relief is usually limited to compensation. The interests of the complainant and the financial interests of the Department could be met if the dispute was resolved before a final appointment was made in a process akin to the appeal procedure for governing bodies or councils. Moreover, much of the disruptive effects of these kinds of disputes could be avoided or minimised if a speedy dispute resolution process was followed before the permanent appointment was made.

S 6B remedies an unintended, but grievous problem that was introduced with s 6A. The problem was this: educator X is contemplated by S 6A because she is a first time appointee or has been out of the provincial department's service for more than one year. S 6A does not require a recommendation from a governing body or council, as the case may be, before she can be appointed permanently All that is required is that the governing body or council be consulted. However, educator Y, who has been temporarily employed in a post (and may have been employed temporarily in that post for a substantial period or time), may not be permanently appointed to that post without the recommendation of the governing body or council because she is regarded as a 5 6(3) appointee. It is therefore easier to obtain permanent appointment from outside the system than from within i.e. being in the system on a temporary basis. And it matters not that the temporary educator may have served the department loyally for a substantial period of time. S 6B remedies this problem, but still requires that governing bodies or councils, as the case may be, be consulted.

The statement in the memo attached to the draft bill - that no additional costs are foreseen as a result of the amendments - tends to confirm our fears that the non-fee school policy will have only a minimal impact on the plight of poor communities. How will the adequacy benchmark levels be funded in non-fee paying schools? The Freedom Charter's goal of free education remains as illusive as before.

One final general comment, in the interests of maintaining perspective. The proposed amendments to SASA deal with the norms and standards for funding non-personnel non-capital schools expenditure which accounts for approximately 10% of the education budget. Within these parameters, since 2000, resources have been significantly redistributed towards the poorer schools, albeit with very real inequalities between provinces. SADTU applauds the present attempt to address the provincial inequalities.

Our concern is that in the larger budget item - personnel expenditure, representing approximately 85% of budget - redress has been minimal. Whilst provinces are supposed to reserve 5% of posts for redress, the effects of this are cancelled by the post provisioning formula which favours more wealthy schools with a larger subject offering. So these (largely former model C) schools receive approximately the same number of publicly-funded posts as the poorer schools, and they are also permitted to collect millions of rands in fees - in comparison with which the proposed adequacy benchmark levels pale into insignificance.

In looking ahead, we think it is very important for the Ministry and Department of Education to develop a vision which maps out the route to free quality public education.

In the short term we need timeframes and goals which indicate clearly when and how many schools and quintiles will be declared non-fee paying schools.

24.05.2005

Johannesburg, 24 - 26 August 2005

Proposed additional amendments to the Employment of Educators Act

[76 of 1998]

The National Bargaining Conference comprises the national and provincial leadership of SADTU together with the SADTU National Negotiating Team. The following additional amendments to the EEA were proposed:

Motivation - according to reports from province, there are currently some 50,000 educators employed on a temporary basis - ie. without any benefits - many have been in this position for several years. This is unfair and contributes to the general demoralisation of the profession.

Motivation - to make it very clear to educators that such conducts are unacceptable and will lead to dismissal.

Motivation - there should be no doubt that educators may not involve themselves in sexual relations with any learner from any school, not just their own school.

Motivation - this section should be deleted as it does not deal with the employment relationship and subjects educators to double jeopardy.