8
SUBMISSION ON THE
FURTHER EDUCATION AND TRAINING
COLLEGES BILL
[B23 – 2006]
National Education Health and Allied
Workers’
(NEHAWU)
Presented
to the Portfolio Committee on Education
by the
NEHAWU Parliamentary Office
Technical and vocational education in
Currently, given deep inequalities, high unemployment and
poverty in South Africa, the sector needs to be reoriented in manner that can help
expand mass participation in an economy centred around the production of basic
goods rather than a narrow preoccupation with skills for export-oriented
sectors.
The current discourse of the restructuring of the sector is
narrowly focused on creating semi-autonomous institutions as if the
bureaucratic inertia of the Apartheid education departments could be ascribed
as the only source of the decline of the sector. In our view, as the National
Education Health and Allied Workers’ Union (NEHAWU), at the heart of the
malaise in the sector was the fact that over an extended period state
investment in technical education fell significantly in proportion to the
higher education sector. Consequently, it was the workers, including the teachers
that bore the brunt as they saw the wage and conditions of service not
improving. On the other hand, this has lead to the mushrooming of private
colleges, often inducing the emergence of “fly-by-night” entities taking
advantage of the unsuspecting and desperate students from poor households.
The current restructuring need to shift away from the
outmoded narrow occupationally-specific training dominated by business studies
and engineering, even though these may be much needed in the economy. The
challenges facing our society calls for an expanding further education and
training sector, including in schools, also in terms of social services, the
arts, etc. in addition to business studies and engineering.
This submission by NEHAWU follows and is consistent with the
submission made by the Congress of the South African Trade Unions (COSATU) in
the process of the enactment of the Further Education and Training Act of 1998.
In principle, as NEHAWU we are opposing this Further Education and Training
Colleges Bill (hereunder, the Bill) largely because of our concerns with regard
to the fact that it contains provisions that pertain to collective bargaining
and the employment status of the workers. These have not been tabled for
engagement at the Public Service Co-ordinating
Bargaining Council (PSCBC) and Education Labour Relations Council (ELRC).
Hence, as NEHAWU we are calling for a process of negotiation
on collective bargaining and labour relations issues inserted in this Bill at
the PSCBC prior to the promulgation of the Bill. Hence, we are asking the
Portfolio Committee on Education to remit this Bill back to the Department of
Education (DOE) for engagement wit labour.
In 1998,
in its submission to the Portfolio Committee of Education on the Further
Education and Training Bill, COSATU expressed serious concerns with regard to
the process leading to the tabling of the Bill and therefore in the extent to
which the Bill was informed by policy. The Bill was table before the process of
the formulation of the Education White
Paper 4 (hereunder, the White Paper) was concluded. Hence, COSATU stated
the following:
“COSATU would like to raise its concerns regarding the
process of developing policy and legislative framework for FET. We are
concerned that the Bill was developed before the White Paper was produced. The
haste to rush through the Bill before the White Paper was finalised creates
uncertainty and we note this with serious concern. While we have
recently received a copy of the draft White Paper, this will be the first
opportunity we have had to comment on this White Paper.”
In
this connection, the federation sought to underscore the fact that the FET Bill
of 1998 did not incorporate some of the key propositions of the Green Paper and
those that emerged out of the public participation process thereto.
Again,
with regard to the current Bill, from our point of view as NEHAWU it is even
more disturbing to find that not only are there provisions in the Bill that depart
from White Paper, but also that the Bill introduces provisions that contradict the
White Paper. Hence, in our point of view some of the provisions entailed in
this Bill (which is essentially an amendment Bill) do not find expression or
justification in the proclaimed or existing government policy such as the White
Paper. In this regard, our concern is in reference to the three key provisions of
the Bill, viz.
·
provisions
entailing unilateral determination of the employment status of the workers on
the part of DOE,
·
thus,
the change of status of public service workers into college employees, and
·
the
exclusion of schools from the FET band.
As
it will found below, our submission goes beyond the above mentioned issues,
crucial as they are to us. We are equally concerned about other matters,
including how councils are established and constituted, the conflict of
interests of members of councils and consequences to failure to comply with government
policies on the part of the councils.
Based on our analysis of the Bill vis-à-vis the current law
in the statute books, i.e. the FET Act of 1998, we concluded that government is
introducing this Bill primarily to deal with matters pertaining to the
employment status of the staff. In other words, this Bill is primarily geared
at enacting the transference of public servants in the sector to the employ of
the college councils, without any collective bargaining process with labour. It
is clear that the most crucial aspects of this Bill pertains to the
transference of state employees to colleges and this was not provided for in
the current legislation, the FET Act. This is despite the fact that there has
not been any engagement on these matters at the PSCBC and ELRC.
Thus, given the fact that the Bill retains most of the
provisions of the FET Act of 1998, which means that any need for changes in
legislation could just be enacted by way of amendments, the DOE’s move to table
a distinct Bill is a stratagem designed to disguise the real motive behind the
Bill. Accordingly, it is hoped that the collective bargaining process could be
circumvented in order to permanently undermine it (as these provisions suggest)
by unilaterally enacting changes to existing law and therefore to take away
labour relations matters away from their rightful forum, i.e. the collective
bargaining chambers. If this was an amendment Bill, given the fact that there
are less substantial changes on other areas of the FET Act of 1998, then it
would have been clear to everyone as to why the government is introducing
amendments, i.e. to deal with the transfer of state employees to colleges and
to undermine collective bargaining in favour of bargaining at an institutional level.
Thus, NEHAWU would like to draw the Portfolio Committee’s
attention to the fact that other than labour related matters, there are no
substantial provisions in the Bill warranting a new Bill. Rather, the DOE
should just be introducing some amendment to the current FET Act of 1998. These
labour related provisions are:
Thus, NEHAWU is concerned about the fact that the DOE is
taking collective bargaining matters into legislation as if they were policy
matters - that could just be codified into law. All provisions pertaining to
labour related issues are matters warranting bona fide engagement between
labour and government, whereupon the DOE may incorporate such collective
agreement into the law.
Hence, NEHAWU calls upon the Portfolio Committee to remit
this Bill back to a negotiation process at the level of the PSCBC and ELRC; or
at least to ensure that this Bill is not processed past Parliament whilst
matters pertaining to the collective bargaining process are kept in the Bill.
In any case, with regard to collective bargaining matters, legislation
can only incorporate agreements. This is in line with the commitment expressed
in the White Paper by government, i.e. an undertaking to embark on the
restructuring of the FET in partnership with social partners; as a basis for
success in the medium to long term.
The thrust of the foregoing was to raise objections to moves
to circumvent and undermine the collective bargaining process in terms of what
clearly appears to be a deliberate intent to unilaterally deal with issues
affecting workers without negotiating with their representatives at all. In
this section, what follows are our concerns and therefore objections to section
5 (12), section 6 (8), section 6 (10) and section 6 (13). In this regard, we
raise two main objections related to the substance of these provisions viz.
The overriding objective informing these provisions is an
attempt to restructure the FET sector along Neo-managerialist lines - at the
heart of which is the weakening of workers’ rights and organization – by
insisting on bargaining at an itomised institutional level in order to move
towards outsourcing and privatization of supporting services and therefore the
casualisation of the workers’ contracts.
Such a restructuring leading to such outcomes can not easily take place in the
context of the public service and central bargaining.
In transferring state employees to the employ of colleges,
the DOE’s is deviating from its own policy prescriptions articulated in the
White Paper. On this matter, the White Paper stated that:
“In terms
of the Employment of Educators Act, 1998, the power to create educator posts at
FET institutions rests with the MEC, while the power to appoint educators to
such posts, on the recommendation of the council of the institution, rests with
the head of the provincial education department. The state as the employer of
publicly funded educators in an FET institution will have the same powers as
the employer of publicly funded educators in the school system.”
Thus, in line with this policy
prescription, both in relation to the educators and other staff members in
institutions, the existing law, i.e. the FET Act of 1998 provided in section 14
(1) under “staff at
public further education and training institutions” that:
“(a)
The educator establishment of a public further education and training
institution is determined by the allocation of posts by the Head of Department
from the provincial educator post establishment created by the Member of the
Executive Council in terms of section 5
of the Employment of Educators Act, 1998 and educators appointed in
such posts are employed in terms of that Act.
(b)
The non-educator establishment of a public further education and training
institution is determined in terms of the Public Service Act, 1994
(Proclamation 103 of 1994).”
What is
in entailed in this Bill in this regard is a clearly a departure and NEHAWU is
concerned about this.
Another crucial aspect of this Bill, which also constitutes a
departure from existing government’s policy, pertains to the termination of
further education and training in schools. The White Paper’s conceptualization
of further education and training locates its delivery in schools at the
centre, including in terms of the drive to develop some articulation across the
system horizontally and vertically. Hence, in terms of the future of schools in
the FET band it states that:
“since Grades 10-12 fall within the FET band of the NQF, it is essential
that FET policies and targets for FET provision take full account of the senior
secondary school sector. An FET policy that ignores 70 per cent of the learners
in FET would make little sense. For at least the next five years, therefore,
policy and targets for the senior secondary phase of schooling will be developed
by provincial departments of education within the national policy framework, in
the form of an aggregated plan that will be reviewed by provincial FET advisory
bodies.”
Whilst we acknowledge the fact that the delivery of FET in
terms of the new requirements for funding and planning would be a challenge for
many schools, it was recognized that provincial governments would need to play
an active role in supporting the schools in this regard. Hence, as NEHAWU we
reiterate COSATU’s position as expressed in its submission to the FET Act of
1998:
“We recognise the difficulties in
transforming the secondary schools into FET institutions, however, we propose
that the Bill should include a coherent framework for schools to progressively
become a part of the FET system.”
In our view, an attempt to do away with the delivery of
further education and training in schools has more to do with an attempt on the
part of government to circumvent the implications of section 29(1) of the
Constitution which provides that:
“Every one has the right to a basic education, including adult basic education; and to further
education which the state, through reasonable measures, must make progressively
available and accessible.”
Other than some nominal support offered to a number of
students by the Umsobomvu Fund, the financial burden for access to FET is
largely carried by students, since there is no financial aid offered by
government in the sector. Thus, when FET is understood as part of the schooling
system then government would be obligated to ensure that no one is prevented
from access to further education and training on account of their lack of money
or their poverty.
As argued above, FET must be retained in schools not withstanding
the challenges that are entailed in its on-going improvement in the light of
new policies and legislation. Hence, we are calling for the deletion of this
clause in line with the FET Act of 1998 and the White Paper.
We propose the deletion of section 2 (1)(c).
[(c) prohibit schools
from offering further education and training.]
As stated above, NEHAWU is opposed to the transference of
staff from their current employment under the state into employment by colleges.
This is even more so particularly because only the continuity of their
employment is guaranteed in the Bill, to the exclusion of their conditions of
service. In our view, this illustrates the glibness of assurances contained in
the Memorandum of the Bill. Hence, based on procedural and substantial grounds
as canvassed above, NEWAWU calls for the deletion of a part of this clause and
insertions of some amendments as we proposed below.
(12) [Despite
sections 197 and 197A of the Labour Relations Act, contracts of employment
between the institution and its employees are transferred automatically on
declaration of an institution as a public college as from the date of the
declaration contemplated in section 4, but] (A)ny redeployment
of an employee as a consequence of the declaration, merger, closure or rationalization, is subject to applicable
labour legislation, including
negotiation with organized labour at the Public Service Coordinating Bargaining
Council and Education
and Labour Relations Council.
We are
aware that many institutions have already been merged, reducing the entire FET
system to about 50 institutions. Our response to the Bill’s proposition in this
regard is intended to ensure that these measures do not happen at the expense
of the rights and status of employment of the workers, especially given the
fact that institutions vary in their financial solvency and capacity. We
therefore insist on the staff’s current status as employees of the state in
terms of the Employment of Educators Act, 1998 and Public Service Act, 1994.
Hence, we are proposing some deletion of the clause and insertion of some amendments.
(8) [Despite sections 197 and 197A of the
Labour Relations Act, the contracts of employment between the institution and
its employees are transferred automatically to the merged single public college
as from the date of the merger contemplated in subsection (1), but any
redeployment of an employee as a consequence of the merger is subject to
applicable labour legislation.]
(8) Where there is
a merger of institutions, the contracts of the employees of a merged single
public college would fall under the Employment of Educators Act, 1998 and
Public Service Act, 1994, any redeployment of an employee as a consequence of
the merger is subject to applicable labour legislation.
Our experience in the restructuring of the higher education
sector is that the restructuring process has been at the expense of the staff,
whereby we have seen the deterioration of the conditions of service as a result
of outsourcing and privatization. In our view, whilst workers remain under the
employ of the state, such a restructuring (as implied by these provisions) is
unlikely to lead to such outcomes. Thus, any merger should not only guarantee
the continuity of employment but also all the conditions of service of the
staff. Hence our proposed amendments:
(10) A
merger referred to in subsection (1) does not—
(a) interrupt the employee’s continuity
of employment and conditions of service;
and
Whilst we recognized the ultimate responsibility of
the relevant MEC to take decision such as the closure of an institution, to the
extent that such a decision has far reaching implications with regard the
welfare and livelihoods of staff members, we believe that there should be some negotiations
with the representatives of the affected staff members prior to such a decision
being taken. Hence, our proposed
amendments below by way of an additional clause under section 8.
8. (1) The Member of the Executive Council may, by notice in
the Gazette, close a public college.
(2) The
Member of the Executive Council may not act in terms of subsection (1) unless
he or she has—
(f) Negotiated with organized labour at
the Public Service Coordinating Bargaining Council and Education and Labour
Relations Council.
It is proposed that the appointment of the members of the
Council as contemplated in section 10 4(b) and section 10. 6 remain as provided
for in section 9.9 of the Further Education and Training Act of 1998. Thus, suggest the following insertions:
The Member of the Executive Council
must, by notice in the Provincial Gazette, and by any other reasonably
practicable means, invite nominations for the members contemplated in section
10 4(b) and section 10. 6 -
(a) the public;
(b) organised business; and
c) organised
labour.
As far as NEHAWU is concerned, as we have already
argued above, further education and training falls under the direct aegis of
government –concurrently shared between the national and provincial sphere. Therefore,
it cannot be restructured as if it is part of the higher education sector. Higher
education, unlike FET is not constitutionally provided for as an entitlement,
therefore higher education does not directly falls under the aegis of the DOE,
hence these institutions enjoy a fair degree of autonomy.
In this regard, the establishment of councils in
colleges as part of an effort to accord them some capacity to respond to the
demands of human resource development in terms of the programmes they are
offering, should not be in tandem with the transference of workers to colleges
and the rolling-back of the rights and gains of the employees. Therefore,
NEHAWU insists that provincial departments of education rather than colleges
should be directly responsible for employment and related matters in line with the
FET Act of 1998.
We are therefore making the following proposal as an
amendment and a deletion:
20. (1) The state is
the employer of all lecturers and support staff in terms of Employment of
Educators Act, 1998 and Public Service Act, 1994 and conditions of service and
privileges of lecturers and support staff are determined in terms collective
agreements concluded by a bargaining council.
[(4) Despite anything to the
contrary in any other law but subject to this section, the Labour Relations Act
or any other collective agreement concluded by a bargaining council that has
jurisdiction in respect of employees of a public college, the council must determine
the functions, conditions of service and privileges of lecturers and support staff.]
With regard to section 26(2) of the Bill, as NEHAWU
we cannot understand why a failure to comply with the law on the part of the
management staff or council should necessarily jeopardize the welfare of the
rest of the staff. Accordingly, the MEC may just discretionally withhold part
of the funding without there being any kind of guidelines as to what sort of
funds could be withheld for this purpose. Similarly, we believe that the
students’ interests with regard to the normal operation of the institutions
should not be compromised as a result of some incompetence of management. In
our view, those who have been entrusted with responsibilities in terms of
provisions of this Bill, both as management staff and council, should
exclusively suffer the consequences of their non-performance, dereliction of duty
or incompetence.
26. (2) If the management staff or council thereafter fails to comply with
the provision or condition timeously, the Member of the Executive Council may
withhold payment of any portion of any allocation appropriated by the
provincial legislature in respect of the public college concerned, without adversely affecting the
remuneration of staff and tuition in the college.
The history of private provision of further
education and training in
Hence, in our view it is certainly not enough to simply
gather information presented in the application without any verification as to
whether:
Hence, we are proposing the following amendments:
(2) The
registrar [may] must require further information, particulars and documents
in support of any application for registration, including undertaking physical inspection of premises and verification of the relevant
information contained in the application.
As far as we are concerned as NEHAWU, any applicant
that does not meet the necessary requirements for registration, should not be
registered at all. However, in the light of the fact that the Bill provides for
provisional registration, we would propose that such provisional registration
should at least be based on the fulfillment of some minimum requirements –
rather than being merely based on a subjective believe or discretion of the
registrar. Thus, the granting of such a registration should be accompanied by
some conditions stipulating the period within which all the requirements must
be fulfilled.
Similarly, NEHAWU is concerned about section 5
allowing for the issuing of some extension, without giving any clarity as to
the criteria constituting “good cause”. This remains in the realm of subjectivity
and discretion, opening government to possible corruption or a situation of perpetual
provisional registration at the expense of students. Hence, we are proposing
some insertion of amendments and deletion of section (5).
(3)
Despite subsection (1), the registrar may provisionally register an applicant
other than a foreign juristic person who does not fulfill all the requirements for registration contemplated in
section 30, [if the registrar believes
that the applicant will be able to fulfill the relevant requirements within a
reasonable period.] on condition
that the applicant fulfilled the minimum requirements as determined by the
registrar and undertakes to fulfill all the requirements within a stipulated
reasonable period as determined by the registrar.
[(5) The registrar may, on good
cause shown, extend the period referred to in subsection (4)(a).]
6In our
view as NEHAWU, whilst we support section 11, in reality it must be recognized
that people accumulate business interests over time, which means that some of
the conflict of interests would emerged whilst they are already members of the
council. Therefore, there has to be a register for all members recording the
actual interests of council members and therefore a possibility to independently
track any conflict of interest; rather than leaving the matter to the
discretion of a council member to determine whether to declare or not. Hence,
we are proposing that there should be a register for all members of the board
to declare their interests.
11. (1) A member of the council may not
have a conflict of interest with the college and all members of the council must declare their business interests
in a register established by the Council.
NEHAWU welcomes the opportunity to
make this submission on the Bill and recognises that FET is an important
component of the process of education in our country. It is important that we
see FET as an integrated component of general education and training and higher
education and not a completely separate entity. Hence, for NEHAWU it is
important to ensure that FET remains firmly within the jurisdiction of the Dept
of Education as well as in the school system. Whilst we oppose the Bill in the
extent that it contains provisions pertaining to matters of collective
bargaining, we believe on other areas of the Bill, our proposals will
strengthen the Bill and will take the FET forward. However, NEHAWU would not
allow unilateral restructuring of the FET sector, especially with regard to its
implications on employment security and conditions of services without
negotiation or engagement at the level of the PSCBC. Hence, we advice the
Portfolio Committee and DOE that the union is considering options should the
Bill proceed containing provisions that should be subject to collective
bargaining.