13b
SUBMISSION: FURTHER
EDUCATION AND TRAINING COLLEGES BILL
Submitted to:
1. INTRODUCTION
Whilst NAPTOSA acknowledges that there are some
changes that have been effected since the Bill was made available for public
comment, these changes do not affect any of the substantive issues on
which NAPTOSA is basing its concerns and objections. It is, for instance, not very useful to
remove the (crucial) definition of “programme” from the list of definitions in
the Bill itself and to place a different definition in the statute. This definition is crucial for understanding
what the colleges will be able to offer and the changed definition (which is
non-specific) does not address the concerns raised by NAPTOSA under Section 4
of this submission.
In this submission NAPTOSA will not comment on
the clause by clause details of the Bill but will focus on the two
substantive issues only.
2. BACKGROUND
There was little or no
consultation during the development stages of the Bill. It was not made available to NAPTOSA (with a
significant membership at FET Colleges), until it was in the near- final stages
of development. Rumours had, however,
been circulating for some time.
NAPTOSA then submitted written comments to the
Department of Education and requested a meeting with senior officials. As soon as the Bill become available for
public comment, NAPTOSA submitted comprehensive comments to the Department. NAPTOSA also made presentations to the
provincial legislatures and submitted written submissions. NAPTOSA is now submitting this comment to the
Portfolio Committee. It needs to be
noted that NAPTOSA has, in its submissions, also included recommendations.
NAPTOSA does not understand the rationale for
some of the proposals made in the Bill and is not convinced that these
would lead to improvements in the FET College Sector. It would be useful to be provided with
arguments or a rationale that explain exactly how these proposals would hold
more advantages for the sector than disadvantages. NAPTOSA has, in developing its submissions,
given a great deal of consideration to the consequences of such an Act and has
come to the conclusion that there are more disadvantages.
3. PRIMARY OBJECTION
NAPTOSA objects in the strongest
possible terms to the transfer of employment contracts of all employees (below
the level of management), from the employ of the State to the employ of the
college councils.
NAPTOSA has objections
because…
3.1
INVASION OF
CONSTITUTIONAL RIGHT TO FAIR LABOUR PRACTICE
Section 54 of the Bill
deals with the transitional arrangements with regard to staff. Section 54(1) provides for the “appointment
(of staff) in terms of this Act, read
with section 197 of the Labour Relations Act.”
Section 197 of the Labour
Relations Act provides specifically for the transfer of employment from one
employer to another employer in the event of a business of the former employer
being transferred as a going concern to the new employer. In that event, there is no need for the
employees to give their consent to the transfer of their employment to the
purchased of the business. The transfer
is automatic. It carries with it the
consequence that all rights and obligations between the old employer and its
employees at the time of the transfer continue in force as if they were rights
and obligations between the new employer and the employees transferred.
If the Bill is enacted,
the colleges will remain public colleges and will continue to undertake the
same business that they have been conducting up until now. Once the Bill is enacted the business of
colleges will not change. NAPTOSA is, therefore, of strong conviction that section 197 of the
Labour Relations Act is not applicable in this regard.
What will trigger the
transfer of an employee from the service of the State to that of a college is
the appointment of such employee under the Bill.
The question we need
to ask is whether a college is able to
appoint, to its own staff establishment, those lecturers currently employed by
the State on a unilateral basis. In
other words, is it necessary for the employees to give their consent to such
appointment? NAPTOSA believes that the
answer is that, under the common law an employer cannot transfer an employment
contract of an employee to another employer without the employee’s
consent.
Clearly in order to
reach agreement before the transfer of employment contracts, there have
to be negotiations.
The question can,
therefore, also be asked. Why did the
state decide to effect the transfer of the current employees by means of an Act
and why they did not follow the accepted
labour route of negotiations in the relevant bargaining councils.
Within the education
sector the most recent example of the transfer of employment contracts exists
in the amalgamation of Colleges of Education with universities. However, there are significant differences
between the two:
·
Colleges
of education were transferred as “going concerns” to the universities.
·
After
extensive negotiations
between the unions and the state, a resolution was signed, giving the staff of
the colleges of education staff 3 options:
-
to
be transferred with the college to the employ of the university with new
conditions of service;
-
to
remain in the employ of the education departments with retention of conditions
of service and benefits, but to be redeployed;
-
to
take up the option of a beneficial severance package.
In another instance the
State has transferred contracts of employment when they transferred state
forests to the private sector. However,
this was regarded as the transfer of a “going concern”. This was only done after negotiations took place and the parties concerned signed an
agreement on the process, position and protection of employees.
NAPTOSA requested
several times that the transfer of staff to the employment of colleges had to
be brought to the e.g. Education Labour Relations Council (ELRC) for
negotiations, but to no avail. NAPTOSA is of the opinion that, by ignoring the
negotiation process, the State has infringed on the labour rights of the
employees and should the Bill be enacted and section 54 (1) be enforced without
the consent of the employees, it would undoubtedly constitute an unfair labour
practice.
3.2
PROTECTION OF TENURE
AND CONDITIONS OF SERVICE OF EMPLOYEES
The State publicly gave
unions, the employees and this portfolio committee the assurance that their conditions of service would be
protected. In this regard the officials
of the department of education always referred to section 20 (3)(a) of the Bill.
We wish to quote the Director-General of the Department of Education on
this issue when he appeared before the NCOP on
NAPTOSA wishes to bring
to the attention of the members of the Portfolio Committee that reference to
the Public Service Act, as a benchmark for conditions of service, was removed from the Bill after the first
round of comment was received from the public.
NAPTOSA is also most
concerned about the implications the Director-General’s comment: “On transfer
all conditions of employment will be intact and thereafter there will be
negotiations.”
Clearly the intention
of the above is that there will be an attempt to change the conditions of
service of employees after their appointment to college councils posts. The question is how will these negotiations
affect the conditions of service of the employees, e.g. housing allowance,
medical aid subsidy, pension
contributions? The Public Service Act would no longer provide the minimum norms
and standards, but the Conditions of Basic Employment Act. Clearly, the current benefits would not be
protected.
With regard to the
security of tenure we wish to quote the Director-General again:
“The Minister has
stated that nobody will lose their posts.
Staff that cannot be absorbed into the colleges will be absorbed into
schools. “
What may contribute to a
college not being able to meet its financial obligations?
1.
Chapter 5 gives the MEC of a province the right to deviate from the funding
norms and statements. (Section 22). Inherently this has the danger that the financial
entitlement (according to the
funding norms) of a college and the actual funds received by the
college, may differ significantly.
In the past this did not
pose a grave danger because colleges were not funded on a programme based
funding model as they will be as from 2007.
2.
Fraudulent acts by the management of a college (who are state employees) If the
purpose of the Bill is on the one hand to also give security of tenure – why include
section 49(2)? How does this contribute to security of tenure?
It is most concerning
that the State interprets section 54(1) of the Bill as an absorption process
where some employees may not be “absorbed” into college council posts. It is also unthinkable that the State wants
to proceed with such an absorption process without appropriate negotiations
between the parties concerned, as has been common practice since 1998 in the
public education sector.
NAPTOSA has been
advocating the past few years that a separate bargaining chamber, within the
public education sector should be established.
Such a step would ensure that the needs of FET colleges and their
state-employed staff would be the focus of discussions and negotiations. It may be argued that section 54(2) of the Bill allows for the
establishment of bargaining councils as it proposes that “The Education Labour
Relations Councils and the PSCBC continues to be the bargaining councils to
determine salaries and conditions of service of employment until the parties
agree to establish a new structure relevant to public colleges.” It must be noted that the above will be
applicable only after the current state-employed staff have been
appointed to college councils posts.
NAPTOSA is not convinced that the scope of the constitution of the
Education Labour Relations Council allows for employees, other than state
employees to be party to the council.
If this is the case, until such time that a new bargaining structure has
been establish, college councils will have the right to determine the
functions, conditions of service and
privileges of lecturers and support staff subject to the Labour Relations Act only.
NAPTOSA is of the
opinion that section 54(2) does not provide the protection to State-employed staff that is being
claimed.
3.3
DELIVERY OF SERVICE AND
FLEXIBILITY WITH REGARD TO UTILISATION OF STAFF
As far as NAPTOSA has
been able to ascertain, the only reason for the proposed transfer of contracts
of employees from the state to the college councils, is to provide FET colleges
with greater flexibility in respect of how staff will be utilised to obtain a
greater flexibility regarding the programmes/qualifications that colleges may
wish to offer.
NAPTOSA is of the
opinion that certain current conditions of service allow for a more
flexible approach. However, it is most
unfortunate that it has been reported to members of NCOP that the current
Further Education and Training Act (1998), “limits the colleges (with regard to
the utilisation of lecturers) in a range of ways”:
“Firstly, currently
college staff are employed under the Employment of Educators Act – the same act
that determines the employment of school-based educators. One of the negative effects of this is that a
college has to draw from school vacancy lists as a first source of staff. Thus even is a college is in need of a
skilled technical person, it may be required to employ a language educator who
is on the vacancy list.”
NAPTOSA wishes to
state categorically that provincial departments of education issue separate
vacancy lists of FET colleges.
Lecturers have to comply with the requirements of the advertised posts
(advertised in terms of the needs of the college) in order to be
appointed. In fact, no Department
of Education is allowed to appoint a lecturer who does not comply with the post
requirements. It is also necessary to
note that vacancy lists are documents that contain advertisements of posts, NOT
a lists of names of educators from which appointments must be made.
NAPTOSA believes that
the current system of vacancy lists allows colleges to advertise posts in terms
of their specific needs and to appoint the person best qualified and skilled
for that specific post.
The second “limitation”
that was referred to dealt with the fact that “colleges are currently obliged
to employ educators with educational qualifications.”
This limitation was
identified before 2001. After
negotiations in the ELRC, clause 2.2 of chapter B of the Personnel
Administrative Measurers was amended in 2001. In terms of the amended provisions lecturers employed at
a FET college are exempted from the requirement of a professional qualification
(teaching qualification). However, these
provisions do include a minor limitation, namely that in the case of a
promotion post (20 % of total number of lecturer posts), preference should be
given to a person with a teaching qualification. NAPTOSA would indeed welcome the opportunity
to negotiate on the deletion of this specific provision.
The third “limitation”
referred to the fact that “colleges keep school time”. NAPTOSA wishes to point out that the
collective agreement applicable to the
hours of work of lecturers, differs
from the agreement for schools, in that a flexible approach to work days and
hours of work is possible.
NAPTOSA is of the
strong view that an even greater flexibility with regard to the utilisation of
state-employed staff can be achieved through negotiations in the relevant
bargaining chambers. We are not convinced that the State has been able to
provide convincing arguments that the transfer of contracts will bring about
changes in the utilisation of employees, increase their productivity, and
motivate them to improve on their teaching.
3.4 CONSEQUENCES OF THE ENACTMENT OF THE
BILL
Given that the agenda
of a transformatory education and training system is to increase access, to
redress part inequalities, to provide for equity across the system and to
provide quality education and training opportunities for all learners, the
enactment of the Bill is more likely to have an effect which directly
contradicts that which it sets out to achieve.
NAPTOSA does not
believe that, as South Africans, we can afford to take the risk that the same
thing will happen in the FET college sector.
Especially now, when more (not less) skills are needed in the
country.
·
NAPTOSA believes,
strongly, that all aspects of the FET College Sector must remain in the control
of the State in order to enable coherent planning across the sector to ensure
that FET Colleges are able to begin to address nationally identified skills
shortages.
·
NAPTOSA also
believes that an improvement in the quality of delivery is only possible if the
Education Departments are in control of, and manage, a coherent quality
management system which focuses on providing opportunities for professional
development.
3.5 CONCLUSION
·
NAPTOSA
is convinced that exactly the same objectives as stated in the bill can be achieved
without the transfer of contracts of current State-employed lecturers and
support staff to the employment of
colleges. This could be achieved through
a negotiation process between the parties concerned.
·
NAPTOSA
objects to the fact that the State has not been willing to engage in
negotiations regarding the future of state-employed staff in the relevant
bargaining councils.
·
NAPTOSA
is of the view that there is no legal precedent for transferring only the contracts of State paid
employees to college councils. The
colleges, as going concerns, are not being transferred. NAPTOSA is of the view that such transfers
would constitute unfair labour practice and employees are protected from such
labour practice; decisions by the Constitution.
·
NAPTOSA
also believes that such as move would serve to destabilise the FET college
sector at a time when FET Colleges should begin to play a far more significant
role in meeting the skills needs of the country. Finally, the long-term effect of this will
affect the quality of delivery, equity across colleges and the relevance of
college qualifications for the workplace.
3.6 SOME
CRUCIAL QUESTIONS
·
What
is the rationale for considering to replace the current FETA with the Bill, and
in particular, what is the reason for the intention to replace the State as
employer with the Council of the Colleges, and how will this assist in
achieving the rationale behind the Bill?
·
Has
consideration been given to achieving the objectives of the rationale, by
retaining the State as employer, and if so, what is the reason for not doing
so?
·
Has
consideration been given to whether the objectives of the rationale can be
achieved through a process of collective bargaining between the State as
employer and trade unions acting on behalf of employees of the public colleges
within the framework of FETA, and if so, what is the reason why it is felt that
it may not be achieved?
·
Is
it envisaged that the State, as employer, and the Colleges Councils,
will negotiate with the trade unions acting on behalf of the educators to
appoint the educators in terms of the provision of the Bill and to transfer
them from the State, as employer, to the College Council? If not, why not?
·
Is
it accepted that the State, as employer, cannot be unilaterally replaced with
the Councils of the Colleges and that the consent of the educators will be
required to be appointed in terms of the provision of the Bill, and for
transfer to the College Councils, and if not, why not?
·
If
it is not the intention to have negotiations with the educators and/or their
trade unions regarding transfer to and appointment by the Councils of the
Colleges, is it realised that this may be in breach of the rights, in common
law and/or of the Constitution of the Republic of South Africa, to do so?
·
Can
a guarantee be given that the educators at existing public colleges, who are
State employees, will not be appointed and/or transferred to the Councils of
the Colleges without the consent of these employees, and if not, why not?
·
Has
it been considered, if the Bill is enacted, that College Councils, will have to
be admitted to the ELRC and PSCBC, as employer parties, to enable the said
bargaining councils to determine the conditions of employment and remunerations
of the educators in question. If so, has
it been determined and established whether this will be permissible in terms of
the provisions of the Act, and the Constitutions of the Education Labour
Relations Council and the PSCBC?
·
Is
it understood, if the educators continue to be employed by the State in terms
of section 54 of the Bill, that any changes to conditions of employment which
may be required to achieve the objectives of the rationale for considering
implementing the Bill, can only be achieved after negotiations in the
Education Labour Relations Council and PSCBC, and if not why not?
4. PRIMARY CONCERN
The issue of skills development and the role of
FET Colleges have, in recent times been highlighted and prioritised by
NAPTOSA strongly supports the following
sentiments expressed in the Bill:
However, it must be recognised that, unless the
Bill makes it possible to achieve these noble intentions, these words in
the Bill can be regarded as no more than rhetoric. NAPTOSA’s concerns therefore relate primarily
to whether or not this Bill, and the consequences of its enactment will,
indeed enable the achievement of these particular goals and it is against
the achievement of these goals that the Bill was evaluated and
critiqued.
The draft FET Colleges Bill has a direct and
significant bearing on all of the above in addition to the possible
consequences for the staff at these colleges.
There are, some statements in the
Preamble which are cause for concern.
These are the references to the need for developing intermediate to
high level skills and to provide for both access to work and
higher education, whilst not referring to the need for developing entry-
(low) level skills. Whilst NAPTOSA
supports the notion that FET Colleges should, and could, also enable access to
higher education, it is not clear to what extent the world of work could
be accessed without also providing for the development of entry-level
skills. If this crucial learning
constituency is not accommodated, it is not clear how the FET Colleges
will be able to be fully responsive to the needs of the Republic,
of the labour market and of communities or how colleges would be
able to advance strategic national policy objectives in respect of the
Skills Development Strategy in cooperation with the Department of Labour. It is therefore not clear how equal
access will be protected, particularly for programmes leading to entry-
level skills development and how past unfair practices will be redressed. If public FET colleges do not provide
access to these qualifications, then how and where will learners gain access
to entry-level skills training? and at what cost to the learners?
NAPTOSA strongly supports the need for
restructured and transformed programmes and colleges but does not believe that this
Bill will, in the end, enable these objectives to be achieved.
NAPTOSA’s concerns stem
from the non-alignment of these policies (and proposed legislation) with often
stated national priorities relating to
The bottom line is that, if public FET Colleges
do not offer appropriate entry – and intermediate level skills training, and if
the Department of Education does not fully fund and support programmes, then who
will offer these programmes and qualifications? … and, at what
cost to learners? How will
learners be able to access these opportunities? … and, how will
skills shortages be eliminated in the long term?
The point is that, in order for colleges to be
viable and responsive, the Department of Education will have to take
responsibility for appointing and managing the provision of staff at colleges and
for employing them. The Department of
Education should to pay salaries and must enable the colleges to utilise
staff flexibly in a way that enables them to offer a range of programmes
and qualifications that:-
-
meet
the nationally identified skills needs of the country in order to impact on the
current and future skills shortages,
-
meet
the needs of different communities
-
meet
the needs of individual learners in a way that enables them to find employment
or to generate on income.
-
enables
access to further education and training opportunities, also in higher
education.
NAPTOSA does not believe that the
Department of Education can afford to abdicate its responsibility in
this regard. If the Department of
Education does not provide, and fund, these opportunities, such opportunities
will not exist elsewhere in the public system and are unlikely to be
accessible to the majority of learners.
NAPTOSA is of the opinion that, for learners in the age-group 13 or 14
to 18 or 19, the public education and training system must
provide the full range of opportunities already described in this
submission.
4.1 SKILLS SHORTAGES
NAPTOSA strongly believes that FET colleges
should not be restricted to offering a limited number (11?) of departmentally
approved national certificate programmes.
NAPTOSA’s concerns stem from the intention, of the Department of
Education, to limit the programmes (that will be supported and funded by
them) to the 11 vocational programmes whilst at the same time phasing out the
present N1 to N3 certificates associated with apprenticeships towards becoming
artisans. NAPTOSA is concerned because of
the non-alignment of this decision with the skills needs of
In brief, there are nationally
identified skills shortages (also at entry and intermediate levels), there are
high levels of unemployment, there are FET colleges which can offer
programmes on a sustainable basis to begin to meet the nationally identified
skills needs provided the skills that are required by various sectors
are embedded in the qualifications and enable holders of the qualifications to
be “workplace ready” i.e. employable.
Clearly, there are links between high drop-out rates, high levels of
unemployment, skills shortages and the role that FET Colleges should
play in order to address this problem.
4.2 FET COLLEGE PROGRAMMES AND SKILLS GAPS
·
The third issue
relates to the purpose of the 11 vocational programmes (for access to
Higher Education) and whether funding only these programmes will result
in a significant skills gap at the entry and intermediate levels in
some(many?) of the economic sectors.
The point is that NAPTOSA is of the opinion
that there will be a “skills gap” and if public FET colleges only
offer the 11 departmentally approved vocational programmes and do not offer
the occupational qualifications, then who?
NAPTOSA strongly believes that the public
education and training system must provide access to a range of
opportunities from a general, “academic” qualification currently offered in schools,
and from vocational qualifications (the 11 programmes) to occupational
qualifications (for specific skills development to meet the needs of economic
sectors) in FET colleges.
This Bill, and other policies in respect of FET
colleges, do not make this possible.
NAPTOSA believes that the Department of
Education must enable FET colleges to be more responsive to the needs of
the country as well as to the needs of communities and individual
learners who wish to acquire skills leading to income generation. FET Colleges have a crucial role to
play in skills development to alleviate skills shortages and in skills
development to reduce unemployment.
4.3 NATIONAL PRIORITIES SHOULD ALSO BE A
NATIONAL RESPONSIBILITY.
A consequence of not allowing State paid
employees in colleges to be utilised to offer programmes leading to
qualifications outside of the present (but being phased out) departmentally
approved NATED programmes or, in future, the 11 new vocational programmes will
be that the standards-based qualifications and skills programmes will only be
available in private colleges … with a significant increase in the costs
to learners. This will mean that
poorer learners will not be able to afford these qualifications or skills
programmes and, effectively, will be denied access. Those who were previously marginalised will
continue to be so. This begs the
question about the extent to which the education and training transformation
agenda will be realised. By limiting
funding to a limited number of opportunities and by imposing limitations on the
utilisation of State paid staff, the responsiveness of the college sector will
be severely constrained. If public
colleges are not supported and funded in a way that enables them to be
responsive, then where will these opportunities be provided? and how
will learners be able to access them?
NAPTOSA is struggling to understand the
rationale for the proposals and decisions made by the Education Department –
especially statements such as the one attributed to the Director General
(speaking at the APPETD conference):
“Public FET provision
will be about a broad, holistic education which leaves the private providers to
concentrate on more occupationally directed training”.
The question is: At what cost to learners?
4.4 POSSIBILITIES
There are possibilities which could be
considered in respect of the funding and post provisioning in
Differentiated funding for different qualifications and/or programmes could
be considered. For example:
- although NAPTOSA is
of the view that these would best be offered by for example, Technical or
Agricultural schools because of the “academic”/broadly vocational
nature of the programmes and the presence of professionally qualified teachers
who have experience in teaching these vocational subjects up to matric level.
·
Short courses (based on registered unit-standards) could be funded
by the industry if the need arises.
College councils would appoint temporary staff for this purpose and
would need to inform the Department of Education.
The example used here only serves to
illustrate the concept of differentiated funding.
The advantages would relate to enabling
colleges to meet the most critical needs (at national, local and
individual levels) whilst also being able to utilise staff as flexibly as
possible. It would also allow for a
combination of Departmental control (over some programmes), Departmental
approval and college autonomy.
Other possibilities that enable colleges to be
more flexible could be considered in the context of the “big picture” i.e. …:
This “context” is about ensuring that the provision
of education and training opportunities in the public system are aligned to,
and meet, the full spectrum of needs that have been identified,
5. PRINCIPLES
The following principles have informed
NAPTOSA’s views: