SUPPLEMENTARY SUBMISSION OF COSATU, DENOSA, NEHAWU, PAWUSA, POPCRU, SADNU, SADTU, SAMA, & SASAWU ON THE PUBLIC SERVICE AMENDNIENT BILL [B 31-2006], AS AMENDED

Submitted to the Portfolio Committee on Public Service and Administration 4 June 2007

1. INTRODUCTION

COSATU and our public service affiliates namely, DENOSA, NEHAWU, PAWUSA, POPCRU, SADNU, SADTU, SAMA, and SASAWU1, are grateful for the opportunity to brief the Portfolio Committee on our views on the revised Public Service Amendment Bill (hereafter "the amended Bill"). Our comments here are to be read together with our original written submission of 15 December on the unrevised Bill, whilst noting the qualification that many of our substantive concerns noted there have now been addressed through the proposed amendments, which were developed through a bilateral consultative process between the DPSA and COSATU.

Noting the serious procedural problems that we had raised in respect the omission to consider the Bill at NED LAC and the Public Service Coordinating Bargaining Council (PSCBC), we are also appreciative of the efforts to address through consultative process with the DPSA, as well as the Portfolio Committee's willingness to accommodate this.

Our approach to this process is based (as identified in our original submission) on our concerns in respect of the implications for:

·         Delivery of social services to poor people and communities; and

 

·         Employment terms and conditions in the public service and the impact on workers' contracts.

 

·         The standing of the Public Service Coordinating Bargaining Council (PSCBC).

 

The extent that we have reached certain compromises through the development of the amended Bill is a recognition of this process is an interim process, as Government's intention is to replace the current legislative amendments and the Public Service Act (PSA) through the forthcoming Single Public Service legislation. Through that we process we intend to ensure that the appropriate consultative processes are complied with through NED LAC and the PSCBC as well as addressing the increasing pattern of legislating public service employment terms and conditions instead of negotiating these through the appropriate collective bargaining structures.

2. COMMENTS ON SPECIFIC PROVISIONS

Most of our comments here are mainly technical in nature and are made to align the' proposed amendments with the consensus reached with the DPSA. However, we do also comment on proposals that have arisen from recommendations made by the Public Service Commission (PSC) and public service such as the SAPS.

2.1 REPLACEMENT OF THE WORDS "AGENCY" WITH "COMPONENT"

In order to address our concerns about the potential for fragmentation of the public service, government. "agencies" have been amended to read as "components". Along with the other amendment on agencies we generally support this approach. However, we note that not all references to agencies have been completely removed, including in the long title of the Bill and in sections 9(2)(b), 12(3)(a)-(c), 12(3)(e)

Accordingly the amended Bill needs to be thoroughly scrutinised to ensure that these are not left in the Bill in error.

2.2 CONCURRENCE OF COMMITTEE OF MINISTERS

The original Bill proposed the insertion of a new section 2(2A), which would authorise the Minister of Public Service and Administration (MPSA) to extend uniform employment conditions and terms to other departments of the public service, which are currently excluded from the PSA. In line with our opposition to continued fragmentation within the public service, we support the original amendments proposed.

However, we note that in response to comments/concerns of the SAPS this amendment has been replaced with a proposal that any determination on employment conditions by the MPSA for educators, members of the services or for particular categories should be subject to "the concurrence of a committee of Ministers"

The implication is that MPSA determinations arising from agreements reached within the PSCBC or relevant 'sectoral chambers, would then have to be subjected to an external process whereby concurrence of the ministerial committee will have to be sought. In our original submission we had raised concerns about the undermining of the collective bargaining structures in the Public Service. It would be more appropriate for other Ministers/Departments to participate and influence the determinations through the collective bargaining process.

Further we request clarity as to whether this new amendment is intended to apply to workers at all levels or merely senior officials.

2.3 POWER OF PREMIERS TO ESTABLISH GOVERNMENT COMPONENTS

Clause 4 of the Bill inserts a new section 3A(a)(ii), which empowers the Premier to establish or abolish provincial government components "after consultation with the Minister and the Minister of Finance". We note that COSATU's proposal that this be amended to read as "on the advice of has been rejected on the premise that infringe powers accorded to the provinces and premiers by the Constitution.

Whilst noting the motivation for retaining the weaker consultation requirement, we are of the view that more consideration should have been given to the extent that such a provision may be used at provincial level to undermine key national policy priorities.

2.4 DELEGA TION/ASSIGNMENTITRANSFER OF POWERS TO COMPONENTS .

Revisions under clause 10 to section 7 A(3) prohibits the transfer, assignment or delegation of a power or duty that affects socio-economic rights under sections 26-29 of the Constitution, which we strongly support since the original provisions would have serious implications for service delivery to poor communities. In line with this we note that section 7A(5)(a) provides that:

"Notwithstanding anything to the contrary in any other law, the executive authority of a government component may assign to the head of the component any power conferred or duty imposed .....

In order to avoid a conflict of interpretation with section 7 A(3) we propose the insertion of the words "Subject to subsection (3)", as a technical amendment.

Further we note that original wording of section 7A(5)(b) required the "approval" of the MPSA in the case of an assignment where the executive authority is not the national Minister. This has now been replaced with "consultation with Minister". We request clarity regarding the motivation for the amendment.

2.5 TERMINATION OF EMPLOYMENT AND ABSCONDMENT

Clause 25 inserts a new section 17 on "termination of employment". Under section 17(3) (as amended), the Bill retains the current position that an employee will be deemed to have been discharged if s/he has been absent for in excess of one calendar month. Under subsection 17(3)(b) the amendment is proposed that the absence "shall be deemed to be absence on vacation leave without pay or leave on such other conditions as the said authority may determine"-.

We are of the view that this provision allows the authority far too much discretion to penalise a worker even if there was justifiably reason for the absence such as if s/he had been seriously ill. In such a case available sick and annual leave may be applied to ensure that the worker is not deprived of pay unfairly. Accordingly provision should be made to allow the application of the leave policy in line with the reasons for absence. This in fact reflects the agreement that we had reached with the DPSA on this clause.