PUBLIC SERVICE AMENDMENT BILL:
AMENDMENTS PROPOSED TO
PORTFOLIO COMMITTEE FOLOWING BILATERALS BETWEEN COSATU AND DPSA
9 May 2007
Consultative or advisory bodies for Minister for the Public Service and
Administration
1. Insert after line 13, on page 6, the following (the
existing section 3(3)(b) to become section 3(3)(c)):
(b) Provision for
representation on any such body by organised labour and other stakeholders
shall, where appropriate, be prescribed.
Government agencies (mainly clause 10 (s7A), pp 11-12, of the Bill)
2.1 Replace all references
to “government agency” and “government agencies” with “government component”
and “government components” throughout the Bill.
2.2 Include an amendment in
the Schedule to the Bill (p 31) to the definition of “public service” in
section 213 of the LRA, i.e. to replace the reference to “organisational component” with “government
component”, i.e. to ensure that it falls under the PSCBC’s
scope:
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Act 66 of
1995 |
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The
amendment of the definition of “public service” in section 213 of the |
2.3 Substitute paragraph
(ii) in clause 4, lines 45 to 51 on page 7 with the
following:
“(ii) on the advice of the
Minister and the Minister of Finance establish or abolish any provincial
government component or establish an existing body as a provincial government
component, designate such component and the head thereof and designate the
Office of the Premier or a provincial department as its principal provincial
department, or amend any such designation; and”
2.4 Substitute paragraphs
(c) and (d) in clause 9(f), lines 47 to 57 on page 10, with the following:
“(c) at
the request of the relevant executive authority and on the advice of the
Minister and the Minister of Finance amend Part A of Schedule 3 so as to
establish or abolish any national government component or establish an existing
body as such a component or designate any such component and the head and principal
department thereof, or amend any such designation; or
(d) at the request of the Premier of a province amend Part B of
Schedule 3 so as to reflect the establishment, abolition, designation or amendment in respect of a
provincial government component contemplated in section 3A(a)(ii).”.
2.5 Omit subsection (6) in
clause 9(f), lines 58 to 61 on page 10.
2.6 Substitute clause 10,
from line 7 page 11 to 12 with the following:
Insertion of sections 7A and 7B in
Act promulgated under Proclamation 103 of 1994
10. The following
sections are hereby inserted in the principal Act after section 7:
Government components
7A.(1) An executive authority may only request the
establishment of a government component in terms of section 7(5)(c) or (d) if
the prescribed feasibility study is conducted and its findings recommend the
establishment of such component.
(2) Subject
to subsection (3), the head of a government component, established in terms of
section 7(5)(c) or (d), may have any one or more of the following powers or duties or
both such powers and duties:
(a) Powers conferred, or duties imposed, by national or
provincial legislation;
(b) powers or duties assigned in terms
of subsection (5) or other legislation; and
(c) powers or duties delegated in terms
of subsection (6) or other legislation;
(d) functions allocated or transferred
in terms of section 3(4)(b) or (c).
(3) No
power, duty or function regarding the realisation of a right contemplated in
section 26, 27, 28 or 29 of the Constitution and other prescribed powers,
duties and functions, may be assigned or delegated, allocated or transferred in
terms of subsection (2)(b), (c) or (d).
(4) For
each government component, the relevant executive authority, in consultation
with the Minister and the Minister of Finance, and by notice in the Gazette—
(a) shall list—
(i) the relevant
provisions of legislation which confer powers, and impose duties, on the head
of the component; and
(ii) a reference to each notice regarding assigned powers and
duties of the head of the component, contemplated in subsection (5);
(b) may list the delegated powers and
duties of the head of the component contemplated in subsection (6);
(c) shall, subject to applicable legislation, determine the
reporting requirements to the head of the principal department to enable that
head to advise the relevant executive authority on the oversight of the
component on policy implementation, performance, integrated planning, budgeting
and service delivery (insofar as applicable);
(d) may include any administrative or
operational matter relating to the component, including the sharing of internal
services with the principal department;
(e) may establish an advisory board without executive functions
for the component and determine the board’s composition, appointment procedure
and remuneration and all matters required for its effective and efficient
functioning; and
(f) may include any other matter
necessary for the effective and efficient functioning of the component.
(5)(a) Notwithstanding
anything to the contrary in any other law, the executive authority of a
government component may assign to the head of that component any power
conferred, or duty imposed, on—
(i) that executive
authority (except the making of regulations) by national legislation; or
(ii) any official of the principal department of that component
by national legislation.
(b) Such
assignment is subject to—
(i) if the executive authority is not the Minister responsible
for the administration of the national legislation in question (in this section
referred to as ‘the responsible Minister’), consultation with that Minister;
(ii) the approval
of Parliament of the intended notice as contemplated in this subsection; and
(iii) publication by
notice in the Gazette.
(c) The notice shall stipulate—
(i) the powers and duties to be assigned
in terms thereof;
(ii) the effective date of the assignment; and
(iii) the conditions
that the executive authority considers appropriate.
(d) The responsible Minister shall table the
notice in Parliament for approval.
(e) Parliament may reject the notice within
90 days after it has been tabled, if Parliament is then in ordinary session,
or, if Parliament is not then in ordinary session, within 45 days after the
commencement of its next ensuing ordinary session.
(f) If Parliament rejects such notice, the
responsible Minister may table an amended notice in
Parliament.
(g) If the responsible Minister tables an
amended notice and Parliament—
(i) approves
the amended notice, the responsible Minister must publish that notice in terms
of paragraph (b)(iii) within 30 days
of the Parliament’s approval; or
(ii) rejects the amended notice within 90
days after it has been tabled, if Parliament is then in ordinary session, or,
if Parliament is not then in ordinary session, within 45 days after the
commencement of its next ensuing ordinary session, paragraph (f) and this paragraph apply.
(h) If Parliament does not reject a notice
as contemplated in paragraph (e) or (g)(ii)—
(i) such notice shall be deemed to have been approved by
Parliament; and
(ii) the responsible Minister must publish
the notice in terms of paragraph (b)(iii)
within 30 days after the periods referred to in paragraph
(e) or (g)(ii), as the case may be.
(i) A
notice may at any time in like manner be amended or withdrawn.
(j) Any assignment in terms of this
subsection shall divest the person whom was vested with the assigned power or
duty.
(k) Nothing in this Act prevents the
assignment of powers or duties to the head of a provincial government component
or the component itself in accordance with provincial legislation of the
province in question.
(6)(a) Notwithstanding
anything to the contrary in any other law, the executive authority of a
government component or the head of the principal department of that component
may, except a power or duty to make regulations—
(i) delegate to
the head of the component any power conferred on that executive authority or
head of the principal department by national legislation; or
(ii) authorise the head of the component to perform any duty
imposed on the executive authority or head of the principal department by
national legislation.
(b) Any
person to whom a power has been so delegated or who has been so authorised to
perform a duty, shall exercise that power or perform that duty subject to the
conditions the person who made the delegation or granted the authorisation
considers appropriate.
(c) Any
delegation of a power or authorisation to perform a duty in terms of paragraph (a)—
(i) shall be in
writing;
(ii) does not prevent
the person who made the delegation or granted the authorisation from exercising
that power or performing that duty himself or herself; and
(iii) may
at any time be withdrawn in writing by that person.
Specialised service delivery unit within department
7B.(1) The Minister may, at the request of the relevant executive authority and by
notice in the Gazette, establish a specialised service delivery unit (herein
referred to as a “unit”) within a department (other than a government
component) and designate any such unit and the head thereof, or amend any such
designation.
(2) An
executive authority may only request the establishment of a unit if
the prescribed feasibility study is conducted and the outcome thereof
recommends its establishment.
(3) The head of a unit may
have any one or more of the following powers or duties or both such powers and
duties:
(a) Powers conferred, or duties imposed, by national or
provincial legislation;
(b) powers or duties assigned in terms
of subsection (5) or other legislation; and
(c) powers or duties delegated in terms
of subsection (6) or other legislation;
(d) functions allocated or transferred
in terms of section 3(4)(b) or (c).
(4) The relevant executive
authority shall, in consultation with the Minister, approve a charter for each unit
which—
(a) shall list—
(i) the relevant
provisions of legislation which confer powers, and impose duties, on the head
of the unit; and
(ii) a reference to each notice regarding assigned powers and
duties of the head of the unit, contemplated in subsection (5);
(b) may list the delegated powers and
duties of the head of the unit contemplated in subsection (6);
(c) shall, subject to applicable legislation and subsection (6),
determine the reporting requirements to the head of the department, including,
but not limited, to enabling that head to advise the relevant executive
authority on the oversight of the self managing unit on policy implementation,
performance, integrated planning, budgeting and service delivery (insofar as
applicable);
(d) may include any administrative or
operational matter relating to the unit, including the sharing of internal
services of the department;
(e) may establish an advisory board without executive functions
for the unit and determine the board’s composition, appointment procedure and
remuneration and all matters required for its effective and efficient
functioning; and
(f) may include any other matter
necessary for the effective and efficient functioning of the unit.
(5) Notwithstanding anything to the
contrary in any other law, section 7A(5) applies with
the changes required by the context to the assignment by the executive
authority of a department to the head of the unit of any power conferred, or
duty imposed, on—
(a) that executive authority (except the making of regulations)
by national legislation; or
(b) any official of the department by national legislation.
(6)(a) A power conferred, or a duty imposed, on the executive authority
or the head of a department by this Act in respect of a unit, may, if delegated,
only be delegated to the head of that unit and such delegation shall be in
terms of section 42A(4) or (5).
(b) The head of the unit may delegate any
power or duty so delegated to an employee in the unit.
(c) Any such delegation shall be subject to
section 42A(6) and (7).
(7)(a) Subject to the approval of the relevant
Treasury, as defined in section 1 of the Public Finance Management Act, the
accounting officer of a department shall delegate all powers conferred, and
duties imposed, by that Act and any regulations and instructions made or issued
thereunder, on that accounting officer in respect of
the financial management of a unit in that department to the head of that unit.
(b) Any such delegation shall be subject to
section 44(2) and (3) of the Public Finance Management Act, except that the
delegation may only be revoked under such circumstances as determined by
treasury regulations or instructions made or issued in terms of section 76 of
the Public Finance Management Act, read with this section.
(c) Accountability for the compulsory
delegations contemplated in paragraph (b) shall be as determined treasury
regulations or instructions made or issued in terms of section 76 of the Public
Finance Management Act, read with this section.
Conditions of service
3.1 Substitute subsection (5)(a) in
clause 3, lines 50 to 55 on page 6, with the following:
(a) Subject to the
3.2 Substitute section
5(6)(b) in clause 7, lines 1 to 3 on page 9 with the
following:
(b) For purposes of proper
implementation, the Minister may, without derogating from the collective
agreement in question, elucidate or supplement such determination by means of a
directive.
Transfer related
matters
4.1 Omit all references to the term “transfer”
in clause 19 on pages 15 to 16.
4.2 Add the following in clause 20 after
line 29 on page 16:
(4) Before employees may be transferred in terms of subsection (3)(b) as a result of a determination regarding an allocation,
abolition or transfer of a function, contemplated in section 3(4)(b) or (c) or
3A(b), consultation shall take place in the applicable bargaining council
established in terms of the
(5)(a) The transfer of an
employee in terms of subsection (1) who is on probation shall remain subject to
probation as prescribed.
(b) Any regulation so
prescribed shall take due regard of the respective functions before and after the
transfer to avoid detriment to the employee concerned.
4.3 Omit in clause 21 in
lines 37 to 38 on page 16, the words:
and to such extent as the
Minister may determine in terms of section 3(5)
Abscondment
5. Substitute subsection (3), from lines
27 to 42 on page 19, with following:
(3)(a)(i) An employee, other than a member of the
services or an educator or a member of the Intelligence Services, who absents
himself or herself from his or her official duties without permission of his or
her head of department, office or institution for a period exceeding one
calendar month, shall be deemed to have been discharged from the public service
on account of misconduct with effect from the date immediately succeeding his
or her last day of attendance at his or her place of duty.
(ii) If
such an employee assumes other employment, he or she shall be deemed to have
been discharged as aforesaid irrespective of whether the said period has
expired or not.
(b) If
an employee who is deemed to have been so discharged, reports for duty at any
time after the expiry of the period referred to in paragraph (a), the relevant
executive authority may, on good cause shown and notwithstanding anything to
the contrary contained in any law, approve the reinstatement of that employee
in the public service in his or her former or any other post or position, and
in such a case the period of his or her absence from official duty shall be
deemed to be absence on vacation leave without pay or leave on such other
conditions as the said authority may determine.
Supervening impossibility
6. In clause 25, from line
19 on page 19 to line 12 on page 20, omit subsection (5).
Outside remunerative work
7. In clause 26, after line 25 on page 20, add the following:
(3)(a) The executive authority
shall decide whether or not to grant permission, contemplated in subsection
(1), within 30 days after the receipt of the request from the employee in
question.
(b) If the executive authority fails
to make decision within the 30 day period, it would be deemed that such
permission was given.
Grievance procedure
8. Insert in clause 31 in line 35 after
“satisfaction” on page 22:
within the period prescribed in the
rules, referred to in subsection (3) or the period for referring such dispute
or instituting such court proceedings, whichever period is the shorter
Reduction of salaries
9. Omit in clause 34, lines 48 to 49, on
page 21, of the following:
determination on
disciplinary procedures in terms of this Act
Regulations
10.1 Substitute in line 5, on
page 24, “The” with the following:
Subject
to the
10.2 Omit subparagraph (ii) in
line 10 on page 24.
10.3 Add to subparagraph (iii)
in line 11 on page 24, after the word “establishment” the following:
and restrictions on the
employment of persons, other than permanently or for fixed periods or specific
tasks, in the public service as a whole
10.4 Omit paragraph (c) from
lines 22 to 24 on page 24.
10.5 Substitute paragraph (e) in
lines 28 to 33 on page 24:
(e) the
designation or establishment of one or more authorities vested with the power
to authorise a deviation from any regulation under justifiable circumstances,
including the power to authorise such deviation with retrospective effect for
purposes of ensuring equality;