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.