4
DRAFT
LEGISLATION ON FURTHER EDUCATION
AND TRAINING
COLLEGES [B23-2006]
Submission to: Portfolio Committee on Education
(National
Assembly)
Receiving agent: Me P. Mpoyiya
Committee Secretary
Submitted by: Mr. A.B. Heydenrych
Manager: Quality
Management Systems, Motheo FET
College,
On behalf of concerned
members of staff of the Motheo
Contact information:
Honorable members of the committee
We, members of staff of the
INTRODUCTORY REMARKS
From the onset one wish to note that this call
for input on the FET Bill [B23-2006], viewed within the context of the advanced
state of the path the Bill has already followed, is a belated gesture to gain
public input into the Bill. The low level of awareness amongst public FET
college staff in general of even the existence of the Bill, the contents
thereof and the advanced path of the Bill, bears testimony to this. In a matter
of such importance to the sector one would have expected more from the
Department of Education, College governances and the Unions to raise awareness
amongst affected sectors. This would have facilitated a more robust and
informed participation of relevant stakeholders in the formulation of the Bill,
as well as prepare them for future developments.
One recognises that it is not the overt duty
of the legislature to embark on awareness campaigns, but it is necessary that
the committee be made aware of the general ignorance, uncertainties and fears
that members of all sectors of the existing staff establishments of public FET
colleges are experiencing. A sector that is already
struggling to maintain staff morale needs to
be empowered to allay the fears and uncertainties arising from the promulgation
of the Bill into an act of parliament.
That the Bill, in its present form is riddled
with inconsistencies, vagueness and possible illegalities, is a matter of
concern, but this we will address during the course of our submission.
SUBMISSION
1.1.
Certain terms as defined in
Chapter 1, of the Bill are used in an inconsistent and contradictory context within
the Bill:
1.1.1.
In chapter 1 of the Bill the
“council” is defined as the governing structure of a public FET college while,
“college,” is defined as the institution established under the Act, yet, in
Chapter 4, clause 20. (1) the “college” is determined to be the employer while
in clauses 20 (2), 20 (3) and 20 (4) it is the function of “council” to
determine posts for lecturing and support staff, to appoint and remunerate them
and determine their functions, conditions of service and privileges. This
raises the following questions:
1.1.1.1.
Who will be the actual legal
employer, the college or the council?
1.1.1.2.
Can an inanimate object be
an employer given that “college” only refers to the concept of an institution
of learning devoid of human capacity?
Recommendation: Given that one would presume
that definitions as defined in
Chapter 1 of the
Bill ascribe particular meanings to particular
words, this would
constitute a contradiction in definition. The terms
“college” and “council” thus require further
clarification or else the
anomaly
needs to be removed in order to avoid confusion of
interpretation.
1.2.
No where in the definitions
is there a determination as to the meaning of the word “employer”, yet the term
is referred to on a number of occasions throughout the Bill in various
contexts. It is therefore often not clear if, when using the term the Bill is
referring to the Department of Education or a college council.
Recommendation: A clear definition and meaning
should be attached to the word
“employer” in
order to avoid confusion and misinterpretation.
2.
Chapter 2, Section 6, subsections (10) to (15),
pg. 13
2.1.
Subsections 10 to 12 deal
exclusively with aspects of discipline while subsections 13 to 15 deal with
completely different aspects regarding rationalization, programmes and establishment.
The direct relevance of the provisions of subsections 13 to 15 to subsections
10 to 12 is thus not clear.
Recommendation: One would propose that the
reference in subsection (10) to the
“provisions in subsections (10) to (15)” be
altered to refer only to
subsections (10) to
(12).
2.2.
Subsection (13) states that;
“… the employer may undertake rationalization of its workforce … prior to the
date of merger …”
The
rationale behind this is not clear. Logic would tell one that rationalisation
should only take place after merger when the real needs of the merged
institution would have been determined.
When
reading section 189 of the Labour Relations Act (Act 66 of 1995) as referred to
in subsection (13) one can only conclude that reference to the “rationalisation
of its workforce” means the dismissal of staff with no option of redeployment.
One thus question the good faith of this subsection.
Recommendation: The subsection should express
itself clearly on the option of
redeployment.
3.
Chapter 3, Section 4 (a), pg. 10
3.1.
One would recommend that the
period of office be three (3) years and not five (5). Student representatives
normally serve for only a year because of the length of programmes they follow.
A period of 5 years for other members could result in a situation where the
college could be saddled with dead wood for a prolonged period. The fact that
members may serve for two consecutive terms will ensure the retention of
dedicated persons continuing to serve on Council and probably be better suited
to members.
4.
Chapter 4, Section 19, pg. 14
4.1.
This section determines that
the MEC shall appoint the management staff that they shall be accountable to
Council only in those matters allocated to them by Council. The Principal shall
be accountable to the MEC in respect of his/her performance agreement
This could
lead to a conflict of interest between Council and the interests of the MEC,
thereby putting the Principal in a situation of divided loyalty and accountability.
The question also arises as to what will be the impact if the Council is not
satisfied with the overall performance of the Principal?
Recommendation: Taking into account that it is
not healthy for an individual to serve
two masters, one would recommend that this
be revised to provide
more extensively for a co-operative approach
for the performance
evaluation of the
Principal jointly by the MEC and Council
5.
Chapter 4, Section 20, pg. 14
5.1.
Anomalies in defining
the staff establishment of an FET college
5.1.1.
In its present form the Bill
provides for the establishment of an executive management consisting of the
Principal, Vice Principal(s) and Chief Financial Officer. It continuous to
determine that the council must appoint the lecturing and support staff. There
is thus no provision for a middle management structure. This could have legal
ramifications in that the Department of Education,
The impact
of this in terms of the Labour Relations Act, Educators Employment Act and the
Public Service Act, and relevant ELRC resolutions need to be further explored.
One aspect that comes to mind is relevant provisions for the security of
tenure. Another is Resolution 2 of 2001 concerning the matching of previous
rectors/principals and vice principals of merged colleges to posts. The
conscious delay by the
Furthermore,
Chapter 9, Section 54 of the Bill provides for the employment of the principal,
vice principal, educators and non-educators to continue to be employed until
such time as appointed “in terms of this Act as read with section 197 (1) of
the Labour Relations Act 66 of 1995.” There is no direct reference to the Chief
Financial Officer or middle management structures although vaguely included in
the definition of “staff” in Chapter 1.
Recommendation: The lack of a defining reference to middle
management positions
in the Bill leaves too much room for individual
interpretation and
should therefore be more clearly addressed and
defined within
the Bill.
6.
Chapter 4, Section 20, pg. 14: Appointment of
lecturers and support staff
6.1.
Serious questions
arise as to the legal entitlement to continued employment of serving educator
and non-educator staff should the Bill in its present form be enacted.
The Bill,
in its present form, does not provide for the continued employment of serving
members of staff should it be enacted. Chapter 4, Section 20 (3) simply states
that the council must appoint and remunerate staff. The Bill thus does not provide
for the transfer of existing contracts. This could result in the unilateral
termination of service of all, or selective categories of employees. Reality
draws the attention to determinations of the Employment Equity act.
Recommendation: The Bill needs to provide for
the continued security of tenure of
staff by means contract
transfer from the State to the college.
6.2.
Chapter 9,Section 54, page
23, provides for the maintenance of
existing employment contracts with the State until new appointments are made in
terms of the provisions of the Bill thereby terminating the existing contracts
as well as
the benefits and privileges enjoyed
by present employees, e.g.
pension, housing allowance, medical aid and
service bonuses.
There
is no clear provision in the Bill concerning these; in Chapter
4, Section 20 (4) the college council
is entrusted with this duty
subject to legal provisions such as
the Labour Relations Act and
agreements reached within a recognized
bargaining council.
6.2.1.
The Bill is silent on the
option to redeploy staff to other departments or sections of, for instance, the
Department of Education. Must one then presume that it is the intention of the
State to permanently terminate the contracts of those members of staff who are
not successful in competing for a post advertised by Council?
6.2.2.
What will happen to those
members of staff who prefer not to be employed by the college council,
therefore do not compete for a position at the college but rather request to be
redeployed?
6.2.3.
There is no provision for
the transfer of employment contracts to the college council, in fact, it is
clear that existing contracts will terminate upon employment by the college
council (Clause 54 of the Bill states, “… the Principal, … lecturers and
support staff employed by the State continue to be so employed until
appointed in terms of the Act …”). This impact severely on the security of
tenure of serving staff and is causing a great deal of uncertainty and anxiety
amongst staff. The claim in the Memorandum on the objects of the FET Bill,
Section 2, Subsection 2.3.3. pg. 37, stating that, “…speculations that
lecturers and support staff will forfeit their privileges such as pension
funds, housing subsidies and capped leave are unfounded,” is untrue and
misleading given the above.
6.2.4.
Members have expressed
concern that the process of entrusting college councils with the status of
“employer” could lead to rampant nepotism and corruption, most of
us have
already experienced this in the recent
appointments of so-called “College Appointees” (A wife suddenly appointed to a
lecturing position without being in possession of the necessary educator
qualifications or experience)
6.2.5.
The Bill determines that the
college council shall determine the staff establishment, advertise, interview
and appoint persons to those positions. There is no provision for the
compulsory short listing or interviewing of serving members of staff. This
means that the college council shall be under no obligation to provide serving
members of staff with an opportunity to contest the positions.
This is
regarded as an unfair labour practice by members of. Members further view this
as an obvious mechanism made available to colleges to rid themselves of
individuals or groups for political and other reasons, e.g. purposes of equity.
6.2.6.
There is no determination
compelling the council to
remunerate or provide service benefits in line
with
those enjoyed by employees
presently employed in
terms of the Educator Employment
Act or the Public
Servants Act.
In
addition, even if the Bill states that the remuneration and service benefits of
staff employed by the council may not be inferior to those provided for in the
Public Service Act, the question that needs to be addressed is as follows; if
council is to determine the staff establishment of the institution it will then
surely also be tasked with the duty descriptions and determination of ranks
within the establishment. If these are not equivalent to positions as defined
within the public service, would the determination still hold?
6.2.7.
Reality questions whether
such bargaining councils,
drawing a distinction between educator
and non-
educator staff, will have been
established and
registered before the Bill is promulgated as
an act.
It is however of some consolation
that the ELRC and
PSBC will continue to function in this respect
until such
time as a bargaining council/s has/have been
established.
Recommendation: The above matters need to be
clearly addressed in the Bill.
Serving members
of staff need be adequately catered for, their
fears allayed
and effective checks and balances worked into the
Bill.
6.3.
Questions also arise as to
what will happen to serving members of staffs’ present pension fund contributions
and accumulated capped leave, medical aid and housing benefits. Affected staff
needs to be assured that these will be in safe hands.
6.3.1.
Will staff be able to
transfer their capped leave should they be employed by the college council?
6.3.2.
Will staff be able to claim
their capped leave if they so wish?
6.3.3.
Will the State transfer the
real amount of accrued pension benefits to the college or a fund of the
member’s choice? Fears have been raised that, as was the case of the then
technicons, the State will only transfer the member’s contributions.
6.3.4.
Will members be able to
continue with their existing medical aid membership under the same conditions
as presently enjoyed from the State?
6.3.5.
Will members continue to
enjoy the same housing benefits?
Recommendation: These matters need to be
clearly addressed, clarified and
guaranteed in
the Bill.
6.4. There is a general consensus amongst staff
that public FET colleges
do not yet have the capacity or skills to
administer their own financial
and human resource issues
effectively.
The lack
of faith in the capacity of public FET institutions to effectively administer
human resource and financial matters is a point of extreme concern for serving
members of staff (at the Motheo FET College 2 of the 5 persons employed in the
Human Resources division are elderly persons previously employed as hostel
matrons until the college closed its hostels in 2005).
Recommendation: These matters should remain
the domain of the Department of
Education
7.
Chapter 4, Section 21, Dispute resolution
7.1.
The transitional
arrangements in the Bill do not clearly provide for the finalisation and
implementation of existing ELRC and PSBC resolutions as pertaining to FET
institutions, e.g ELRC resolution 2 of 2001.
7.2.
The transitional
arrangements in the Bill do not clearly provide for the finalisation and
resolution of existing disputes referred to the ELRC or PSBC. Many staff so
affected are of the opinion that college councils are consciously delaying the
resolution of
disputes
in the hope that these will be set aside once the Bill is enacted.
7.3.
Section 21 (4) of the Bill
determines that a dispute that is unresolved after conciliation should be
referred to the
7.4. It is also amusing that reference is made
only to disputes arising
out of
disagreements over payment and conditions of service; but
what about normal grievances? While we
are aware that the
Labour Relations Act determine that
appropriate grievance
procedures must be established, one
wonders why the Bill,
Chapter 4, clause 21 (1) does not
address this. Can one simply
presume that this is implied because
the LRA provides for it?
Recommendation: The Bill needs to be altered
to make clear provision for these
matters before,
during and after the transitional period.
8.
Chapter 5, Section 22, Subsection (4) Funding of
public FET colleges
8.1.
With reference to Chapter 5,
Section 22 (4) it simply states that the MEC must; “on an annual basis provide
sufficient information to public FET colleges regarding the funding referred to
in subsection (1).”
Recommendation: One would prose that this be
altered to read” … regarding the
funding referred
to in subsection (1) by the end of the third quarter
for the following
financial year.’ Logic would conclude that, in order
to facilitate
effective financial planning and projection the
institution needs
to know what this funding will amount to well in
advance.
9.
Chapter 8, General
9.1.
Section 45, Subsection 1: It
is suggested that direct reference be made to the Access to Information Act in
order to avoid any possible manipulation.
9.2.
Section 46, Subsection
1: It is suggested that instead of
saying; “… may appoint a person to conduct ...”, it should provide for a
committee, which could consist of one person. This is to avoid legal
manipulation.
9.3.
Section 52: How can this Act
prevail over any other Act? This needs to be rephrased and put into proper
context. This contradiction also occurs elsewhere in the Bill.
10.
Inadequate transitional arrangements
10.1.
The transitional
arrangements as described in Chapter 9 of the Bill are very generalist and open
for interpretation.
10.2.
The transitional
arrangements take no cognisance of the need to ensure that colleges possess of
the necessary capacity and skills to ensure the effective administration of the
institution, especially as regards human resources and financial
administration; in fact, the general impression is that the Bill assumes that
these are already in place; a very wrong presumption of course.
11. CONCLUDING
REMARKS
One note
the motivations as set forward in the Memorandum on the objectives for
introducing the FET Bill and the attempts to put staff’s mind at ease
concerning their employment contracts and benefits. However, from the above
inputs, the facts put forward and the concerns raised the committee needs to
note the general consensus amongst staff of all sections and positions at the
college that the Bill, if enacted, pose a distinct threat to the continued
effective operations of the majority of FET colleges in that;
·
Through this Bill the State
is effective and conveniently shedding two of the major problems facing
colleges, namely Finances and Human Resources, and making it the excusive
concern of the colleges. This really boils down to a dereliction of duty in
that the State is conveniently transferring these obligations to the colleges
knowing full well that colleges do not have the human, resource and skills
capacity to effectively administer these areas.
·
College councils have always
had the legal right in terms of Section 14, Subsections (2) and (3) of the FET
Act, Act 98 of 1998 to employ staff on both a permanent or part time/temporary
basis. The contention that the Bill will facilitate a more flexible approach to
employment practices thus does not hold water.
The members are of the opinion that this Bill
has been designed in order to expedite a political agenda rather than serve the
purpose of facilitating effective service delivery by the colleges.
We, however, wish to thank the committee for
affording us the opportunity to make this submission. We wish to assure you
that this submission is an honest attempt at contributing to the continued
effective functioning and growth within the FET sector, a sector dear to our
hearts.
Albert B. Heydenrych