PUBLIC SERVICE AMENDMENT BILL [B31B-2006]:
CLAUSE-BY-CLAUSE EXPLANATION
(Prepared by DPSA for the Select Committee on Local
Government and Administration, NCOP)
1. OBJECTS OF THE BILL
1.1 Experience
has shown that some organisational and human resource arrangements in Public
Service Act (or the lack thereof) directly or indirectly hamper internal
efficiency and service delivery. These areas include the following:
(a) Currently the Public Service Act,
1994 (Proclamation No. 103 of 1994), ‘‘the Act’’, does not adequately regulate
the deployment of staff;
(b) Some government functions are
provided via departments, not close to the point of service delivery and
without direct accountability and decision-making by the functionaries tasked
with such delivery. On the other hand some government functions are provided
via entities outside the public service without direct control and influence by
the relevant political head;
(c) The Act and its prescripts do not
meet the desired standards which weaken human resource management and results
in costly legal disputes;
(d) Employees who
are suspected of transgressions sometimes resign and join other departments
without being disciplined;
(e) Employees who are dismissed for misconduct, even related to
corruption, may be re-employed by other departments;
(f) Different
interpretations of some provisions resulted in legal disputes, while other are
obsolete, overly complex or conflict with other legislation.
1.2 Therefore
the
overarching object of the Bill is to improve the organisational human resource
framework, which in turn will improve service delivery. To this end, the
key objectives of the Bill are to—
(a) improve staff mobility
arrangements for the public service;
(b) enable greater alignment
between the conditions of service of the general public service falling under the Act and certain sectors which,
although part of the public service, have
their own employment legislation;
(c) introduce government components as a
new institutional form within the public service as well as specialised service
delivery units within departments, to enable direct service delivery through a
focussed, ring-fenced separate entity under the direct control of a Minister or
other executive authority (political head);
(d) enhance compliance with the Act
through compulsory discipline of transgressors and reporting thereon;
(e) address a number of legal
difficulties arising from the day-to-day application of the Act as well as
arbitrations and court cases; and
(f) simplify the Act through streamlining
several provisions, removing obsolete provisions and aligning the Act with
other legislation in order to facilitate its administration, which in turn will
enhance service delivery.
2. CLAUSE-BY-CLAUSE
SUMMARY OF PROPOSED AMENDMENTS
2.1 Clause 1 (pp 3-5)
This clause proposes the replacement
of section 1 in the Bill, i.e. definition section, which defines words or
phrases used in the Act because a number of definitions are updated or
clarified and certain new definitions are proposed.
It is important to note the purpose
of definitions in legislation, i.e.
(a) to avoid, by means of abbreviation,
tedious repetition of terms or cross-references to provisions (e.g. definitions
of department and government component); or
(b) to avoid ambiguities through delimiting,
extending or narrowing the ordinary dictionary meaning of a word or phrase;
The new definitions include “days”,
“collective agreement”, “electronic government” “employment practice” (similar
to the definition in the Employment Equity Act, 1998), “functionary”, “government
component”, “gratification” (for provisions pertaining to corrupt related
misconduct by employees), “organ of state” and “principal department”.
2.2 Clause 2 (p 5)
This
clause amends section 2 of the Act which deals with the application (scope) of
the Act. The Act provides that in case of conflict between the provisions of
the Act and the employment law for educators, members of the South African
Police Service, the Regular Force of the South African Defence Force, the
Department of Correctional Services or members of any intelligence service, then
that employment law will prevail.
In
this clause provision is made for the concurrence of a committee of Ministers
for determinations on certain conditions of service pertaining to the following
sectors: educators and members of the South African Police Service, the Regular
Force of the South African Defence Force and the Department of Correctional Services.
This proposal is aimed at obtaining greater alignment in the conditions of
service of the general public service and the mentioned sectors.
Provision is also made in this
clause that where the head of any department is appointed in terms of the
Constitution, the provisions of the Act shall only apply to that head to the
extent that the subject-matter of these provisions are not provided for in any
other law governing his or her employment or his or her contract of employment.
2.3 Clause 3 (pp 6-7)
This clause proposes to replace
section 3 of the Act which regulates the functions of the Minister for the
Public Service and Administration (“the Minister”). Section 3 of the Act was
redrafted to more clearly set out the areas in respect of which the Minister
may determine norms and standards by means of regulations, determinations and
directives. It also contains a new provision enabling the Minister to appoint a
consultative body or an advisory body to assist the Minister on any of the
mentioned areas.
2.4 Clause 4 (p 8)
This clause replaces section 3A of
the Act which deals wit the functions of Premier. The changes pertain to set
out the role of a Premier with respect to the creation of the government
components in his or her province. It requires a Premier to consult, but not to
obtain concurrence from, the Minister and the Minister of Finance, before establishing
any such component. The proposed new government components are discussed in
more detail in paragraphs 2.9 and 2.10.
2.5 Clause 5 (p 8)
It is proposed that section 3B of
the Act that deals with heads of department and their career incidents should
be repealed since its content is to be included in a new section 12.
2.6 Clause 6 (p 8)
Section 4 of the Act provides for
the South African Management Development Institute (SAMDI) and a Training Fund.
The clause proposes the removal of the reference to the name of this training
institution to allow for its name to be changed when required by the President
by proclamation (i.e. through amending Schedule 1 to the Act). The clause also
proposes the repeal for a provision for a Training Fund that is not in
existence.
2.7 Clause 7 (pp 8-9)
Section
5 of the Act deals with the implementation or limitations of actions affecting
the public service or its members. The review of this section is proposed in
order to clarify a number of its provisions.
Concerning
collective agreements, the State Law Advisers advised that after the conclusion
of collective agreements pertaining to conditions of service in relevant
bargaining council, these should be implemented by means of ministerial
determinations in terms of section 3(3)(c)
of the Act. To limit this need to cases where additional provisions are
required to give effect to a collective agreement and also to assist with the enforcement
of collective agreements, collective agreements concluded after the
commencement of the Bill pertaining to employees appointed under the Act are
deemed to be ministerial determinations.
In
the clause provision is also made for the Minister to implement acts
retrospectively provided that the circumstances justify it and it is not to the
detriment of employees. Provision is made for functionaries to correct any
action or omission in terms of the Act if based on an error of law or fact or
fraud and if in the public interest.
Furthermore provision is made for
the implementation of directives issued by the Public Service Commission issues
directives in terms of section 196(4)(d) of the Constitution. These directives
are aimed at ensuring that personnel procedures relating to recruitment,
transfers, promotion and comply with values and principles in section 195 of
the Constitution. The relevant political or administrative head (e.g. a Minister,
MEC or head of department) must implement any such directive within 60 days
after receipt thereof.
2.8 Clause 8 (pp 8-9)
Section 6 of the Act deals with
access to information by the Minister. It is proposed that this clause not be
limited to employees providing access to the Minister, but also include
political heads (executive authorities). Furthermore it is proposed that an
employee who wilfully or in a grossly negligent manner fails to comply is
guilty of a criminal offence.
2.9 Clause 9 (pp 10-11)
Section
7 deals with the different kinds of organistional institutions within the
public service and how they may be created as well as the functions of an
administrative head of department as well as the special functions of the
Director-General of the Office of a Premier.
Current
institutions under the Act are:
(i) National
departments and Offices of Premier which are listed in Schedule 1 to the Act
(ii) Provincial departments listed in
Schedule 2 to the Act
(iii) Organisational components listed in
Schedule 3 to the Act
The
clause refines the provisions regarding the specific functions of the Director-General
of the Office of a Premier and the creation of national and provincial
departments.
In
addition the clause proposes the replacement of the current provision for the
creation of organisational components with provision for the creation of new
organisational institutions, namely government components. Like national and
provincial departments currently, these components may be established by the
President by notice in the Gazette. Such
establishment must, in the case of a national government component, be preceded
by a request from the relevant national Minister and advice of the Ministers of
Finance and of Public Service and Administration. In the case of a provincial
government component, it must be preceded by a request of the relevant Premier
acting after consultation with the Ministers of Finance and of Public Service
and Administration.
It is proposed that current Schedule
3 organisational components should be moved to Schedule 1 since apart from
different designations no difference exists between Schedule 1 and 3 bodies
(see clause 41 of the Bill).
2.10 Clause 10 (pp 11-15)
This
clause deals with government components
as a new organisational form in the public service and specialised service delivery units within departments.
The
creation of government components would
enable direct service delivery through a focussed and fully ring-fenced entity.
They will be under the direct control of a Minister, Premier or MEC (i.e. an
executive authority), with accountability and responsibility vested in the
functionaries directly involved with the performance of the functions in
question, and in collaboration with that executive authority’s department. A
government component will be a separate institution in the public service and
its head will be the accounting officer in terms of the Public Finance
Management Act, 1999. The component model could be used for an institution with
a unique identity that has specific measurable functions and that can be logically
grouped in terms of a particular service delivery model. Such a component may
have original statutory powers or assigned or delegated statutory powers and
duties. A government component may however not have functions to provide
socio-economic services to give effect to the rights contemplated in sections
26 to 29 of the Constitution. The assignment of statutory functions of the relevant
Minister, Premier or MEC in terms of national legislation to the head of the
component will be subject to Parliament’s approval and the exercise thereof
will be subject to specified conditions. Once a function is assigned, the
functionary to whom it is assigned become accountable for its performance. A
government component is partnered with a principal department (listed in
Schedule 1 to the Act) which will assist the relevant Minister, Premier or MEC
with oversight of the component on policy implementation, performance,
integrated planning, budgeting and service delivery. The advantages of using
this organisational form in the public service include—
(a) administrative and operational arrangements
to be customised to suit a particular service delivery environment;
(b) improved governance through direct
accountability and decision-making as close as possible to the point of service
delivery;
(c) direct control and influence by political
heads (e.g. a Minister, Premier or MEC over service delivery outcomes without
the need to create entities outside the public service (e.g. public entities);
(d) an institutional mechanism to
reincorporate some public entities, if required, into the public service; and
(e) the establishment, if required, of
an advisory board to advise the executive authority on service delivery matters
and to accommodate stakeholder interests.
In
addition to the government component model, the Bill also proposes an enabling
provision for the establishment of specialised
service delivery units within departments.
The features of these units are similar to those of government components,
except that (i) these units
may, unlike such components, perform services pertaining to the mentioned
constitutional socio-economic rights and (ii)
these units are to operate within departments while government
components would be separate institutions outside departments. Provision is
also made that when the executive authority or head of the relevant department delegates
functions in terms of the Public Service Act in respect of a unit, it must be
delegated to the head of that unit. Subject to the relevant Treasury’s approval
and special arrangements regarding accountability, provision is made for the
compulsory delegation of the accounting officer’s functions in terms of the
Public Finance Management Act to the head of that unit. Any Minister, Premier
or MEC may establish such unit in departments falling under his or her
portfolio.
The
establishment of a government component or specialised service delivery unit
within a department must be preceded by a feasibility study recommending its
establishment.
Please see Annex A for a more complete exposition of the proposed government
component model as a separate institution within the public service and the
proposed model for specialised service delivery units within departments.
2.11 Clause 11 (p 15)
Section 8 of the Act deals with the
staffing composition of the public service. The clause proposed a new section
to clarify this provision with respect to post establishments and the kind of
employment capacities, i.e. permanently or temporarily and full-time or
part-time.
2.12 Clause 12 (p 15)
This clause proposes a more
appropriate heading for Chapter IV of the Act.
2.13 Clause 13 (p 15)
This clause proposes a new section
in order to indicate what are the different mechanisms of obtaining the
services of persons in terms of the Act by referring to all the relevant
provisions elsewhere in the Act. In essence it entails appointments and
deployments of current employees in the form of transfers (which is permanent
in nature), secondments (which is temporary in nature) and assignments.
2.14 Clause 14 (p 16)
Section 9 of the Act deals with the
vesting of the power to appointment of staff in the political head (executive
authority). The clause proposed a new section to streamline its provisions.
All references in the Act to
promotion have been omitted to accord with the principle of open competition
(for at least posts in the SMS) and limited open competition (for other posts)
and to limit unfair labour practice disputes in this regard. See for example
this clause and clauses 14, 19 and 20 regarding appointments, probation and
transfers.
2.15 Clause 15 (p 16)
Section 10 of the Act deals with the
qualifications for appointments. The clause proposed amendments to align it
with a Constitutional Court judgment which entitles permanent residents to
permanent appointment and clarify the other requirements for appointment.
2.16 Clause 16 (p 16)
Section 11 of the Act sets further
criteria to be considered when making appointments. An appropriate reference to
the Employment Equity Act, 1998, is proposed in the clause.
2.17 Clause 17 (pp 16-17)
The current section 3B has been
collapsed into section 12 since both deal with the appointment of heads of
department. In addition, the clause seeks to enable the President to transfer,
subject to the relevant Premier’s concurrence, the head of a national
department to a province and the head of the Office of a Premier or a
provincial department to another province or a national department.
2.18 Clause 18 (pp 17-18)
The proposed amendment to section
12A which deals with the appointment of so-called special advisers seeks to clarify
Cabinet’s role in determine which categories executive authorities may appoint
special advises.
2.19 Clause 19 (p 18)
Section 13 of the Act deals with the
appointment of employees on probation and what is to happen when their
probation is not confirmed. The proposed amendments streamline this provision
to allow for regulations to determine the periods of probation for different
categories of employees and to stipulate that if an employee’s probation is not
confirmed, the period may be extended or the employee may be dismissed in
accordance with the
2.20 Clauses 20, 21 and 22 (pp 20-21)
Sections
14 and 15 deal with transfer within the public service and to the public
service as well as secondments to and from the public service.
Clause
20 seeks to clarify section 14 of the Act. Currently this section provides for
transfer of employees within the public service without their consent and
without due process. The clause now provides that an employee may only be
transferred without his or her consent if before a decision is made on the
transfer, the employee’s representations have been considered and the transfer is
in the public interest. The clause also provides that when a function is
transferred which entails the transfer of staff, consultation in the relevant
bargaining council regarding the transfer of staff must first take place.
A
new section 14A (clause 21) is proposed to facilitate the mobility of staff
within
the
public service by providing for continued employment despite a transfer or a
change in employment capacity. The new section 15(1) (clause 21) aims to
clarify a similar provision for certain transfers of employees from organs of
state to the public service. In addition, the new section 15 clarifies
secondments to and from the public service and enables secondments within the
public service (internal secondments are currently only dealt with in
regulations made under the Act). Provision for secondment of employees without
their consent, but following due process and acting in the public interest, is
also included.
Please see Annex B for a more detailed exposition of the provisions regarding
the transfer of staff, including the meaning of the term “public interest”.
2.21 Clause 23 (pp 19-20)
Section 16 of the Act deals with the
retirement of employees. The proposed change entails discretion to allow the
employee to give shorter notice of his or her intention to retire early. In
addition, provision is made for employees 55 years and older, but younger than
60, to request early retirement on a basis similar to employees younger than
55. Employees 55 years and older, but younger than 60, have the right to retire
but are penalised in respect of their pension benefits for every year they
retire earlier than 60. The amendment would allow them like employees younger
than 55, to request retirement and, if approved, there would be no pension
penalisation.
2.22 Clause 24 (pp 20-21)
A
new section 16A contains provisions similar to the Public Finance Management
Act to assist with the enforcement of the Act, e.g. compelling executive
authorities to take disciplinary steps against transgressing heads of
department, and heads of department to take such steps against transgressing
employees. Provision is also made for reporting on such transgressions to the
Minister and in turn for the Minister to report these to the relevant
legislatures.
A new section 16B aims to remove
current legal difficulties with the head of department being vested by the Act
with the power to dismiss an employee on the ground of misconduct (section
17(1)(b) of the Act) while the
chairperson of the disciplinary hearing pronounces the sanction in terms of the
relevant collective agreement for employees on levels 1 to 12 and the relevant
ministerial determination for SMS members (levels 13 to 16). It is proposed
that all sanctions pronounced by the chair must be implemented by the head of
department. Provision is also made for the commencement or continuation of a
disciplinary hearing by a new department in respect of alleged misconduct by
the employee at his or her former department.
2.23 Clause 25 (pp 21-22)
Section 17(2) of the Act, which
contains the grounds for dismissal, was revisited to align it with the grounds
for dismissal recognised by the
2.24 Clause 26 (p 22)
Section 30 of the Act regulates
outside remunerative work by employees. The clause proposes, in accordance with
the Basic Conditions of Employment Act, 1997, the omission of the requirement
that employees must place the whole of their time at the disposal of the State.
In addition the criteria to consider when considering a request is stipulated,
namely interference with the efficient performance of work or a contravention
of the code of conduct (e.g. conflict of interest).
2.25 Clause 27 (p 23)
Section 31 of the Act deals with the
repayment of unauthorised remuneration to employees. The clause seeks to simply
the provisions of section 31.
2.26 Clause 28 (pp 23-24)
Section
32 of the Act deals with the assignment of functions other than ordinary
functions to employees. The clause proposes to clarify these provisions, to
regulate acting of employees in other posts and to ensure that such assignments
are taken account when conducting performance assessments.
2.27 Clause 29 (p 24)
Section 33 of the Act
regulates the cession by employees of their remuneration. The amendment
replaces an outdated reference to the Exchequer Act, 1975, with a reference to
the Public Finance Management Act.
2.28 Clause 30 (p 24)
Section 34 of the Act deals with the
non-reduction of salaries of employees. The clause proposes to clarify in which
circumstances such reductions would be permissible.
2.29 Clause 31 (pp 24-25)
Section 35 of the Act provides for
grievances of employees. Provision is made for an aggrieved employee to first
exhaust the grievance procedure within the department before referring a
dispute to a bargaining council or instituting court proceedings regarding the subject
matter of his or her grievance. If a department does not adhere to the
applicable period for dealing with a grievance, the aggrieved employee may take
any of the mentioned steps. Heads of department are also enabled to refer their
grievances directly to the Public Service Commission in the circumstances
determined by the rules of the said Commission.
2.30 Clause 32 (p 25)
Section 36 of the Act deals with the
political rights of employees, but not standing for elections as such. The
proposed new section 36 does not deal with the political rights of employees
because the view is that it is dealt with in the Constitution and the code of
conduct for public servants. The proposed section 36 does now seek to regulated
employees’ candidatures for election to the National Assembly or provincial
legislature or municipal council and their appointment as permanent delegates
to the National Council of Provinces. They are permitted to be candidates but
subject to the code of conduct for public servants and such conditions as may
be determined by regulation. Upon accepting such election or appointment, the
employees are deemed to have resigned. Employees are allowed to be part-time
municipal councillors.
2.31 Clause 34 (p 26)
Section 38 of the Act deals with
remuneration wrongly granted to employees. The clause proposes to clarify this
section and also to vest certain powers with the accounting officer of the
department in question (instead of the relevant Treasury) in line with the
Public Finance Management Act.
2.32 Clause 35 (pp 26-27)
Section 41 of the Act, which deals
with the areas on which the Minister must or may make regulations, has been
revisited as a whole to streamline it by referring to the areas in respect of
which the Minister may determine norms and standards (new section 3(1)) and
omitting unnecessary detailed provisions dealt with in overarching provisions.
2.33 Clause 36 (p 27)
Section 42 of the Act provides for a
Public Service Staff Code. To limit confusion with prescripts in place
immediately before commencement of substantial amendments to the Act on 1 July
1999, it is proposed that provision be made for one or more handbooks to
include different determinations and directives.
2.34 Clause 37 (pp 27-28)
The new section 42A is a
comprehensive delegation provision enabling the Minister, an executive
authority and a head of department to delegate their powers or duties in terms
of the Act.
2.35 Clauses 38-40 (pp 28-33)
These clauses propose the replacement
of the current Schedules 1, 2 and 3 to the Act to reflect the current national
and provincial departments and Offices of the Premier as well as Schedule 3 for
the proposed new government components. The first proposed government component
is the Centre for Public Service Innovation with the Department of Public
Service and Administration as its principal department.
2.36 Clause 41 (p 33)
This
clause proposes that-
(a) all
references to “officer” be replaced with references to “employees” to align it
with labour legislation; and
(b) all references to “executing authority”
be replaced with references to “executive authority”.
2.37 Clause
42 (pp 33-35)
This
clause refers to amendments to other Acts listed in the Schedule to the Bill. These
amendments includes amendments to-
(i) the
(ii) replace
outdated references to the Public Service Commission.
ANNEX A
PUBLIC SERVICE AMENDMENT BILL [B31B-2006]:
NARRATIVE ON GOVERNMENT COMPONENTS AND SPECIALISED SERVICE DELIVERY
UNITS WITHIN DEPARTMENTS
1. PROPOSED NEW
ORGANISATIONAL FORMS IN PUBLIC SERVICE
Two new
organisational forms in the public service are proposed to supplement the
departmental organisational form, namely a government component and a
specialised service delivery unit.
2. GOVERNMENT COMPONENT
2.1 Background
The government component
organisational form applies predominantly to service delivery institutions,
with a unique identity, that has specific measurable functions that can be
logically grouped in terms of a particular service delivery model.
It provides an institutional
mechanism for the assignment or delegation of government functions to
government components within the public service without having to assign
functions to a separate juristic person (e.g., public entity) outside the
public service.
The head of a government component
will be the accounting officer of the component in terms of the Public Finance
Management Act (PFMA). Provision is therefore made for original financial
powers for the head of such component.
A government component is partnered
with a principal department (listed in Schedule 1), which will assist the
executive authority with exercising oversight over a government component on
policy implementation, performance, integrated planning, budgeting and service
delivery (insofar as applicable).
This organisational form is particularly useful to effect
service delivery as close as possible to the point of service delivery with
customised decision making powers, accountability and reporting arrangements as
determined by an executive authority. A
government component is an organisational form separate from its principal
department, but would still fall under the Vote of the principal department.
The President may by proclamation in
the Gazette at the request of the relevant executive authority and on the
advice of the Minister for the Public Service and Administration (MPSA) and the
Minister of Finance establish or abolish any national government component.
In the case of a provincial
government component, the relevant Premier may establish or abolished it and
the President is to make necessary changes to the relevant Schedule by
proclamation.
An executive
authority may only request the establishment of a government component if the
prescribed feasibility study is conducted and its findings recommend the
establishment of such a component.
The
head of a government component may have any one or more of the following
functions -
(a) functions
directly conferred by national or provincial legislation;
(b) functions
assigned in terms of the Public Service Act (see par 2.4) or other legislation;
and
(c) functions
delegated in terms of the Public Service Act (see par 2.5); and
(d) functions
allocated or transferred by the MPSA in terms of the Public Service Act (proposed
s3(4)(b) or (c) or 3A(b)).
NB Functions regarding the realisation
of a right contemplated in section 26, 27, 28 or 29 of the Constitution (so-called
socio-economic rights) and other prescribed functions, may not be a function of
a government component. The rights
referred to in the Constitution involve the following functions:
(a) Housing;
(b) health care, food, water and social
security;
(c) children; and
(d) education.
For each
government component, the relevant executive authority in consultation with the
Minister for the Public Service and Administration and the Minister of Finance,
and by notice in the Gazette -
(a) shall
list -
§
the relevant provisions of legislation which confer powers,
and impose duties, on the head of the component; and
§
a reference to each notice regarding assigned powers and
duties of the head of the component (see par 2.4);
(b) may list the delegated powers and duties
of the head of the component (see par 2.5);
(c) shall, subject to other 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.
2.4 Assignment
of Powers and Duties
The
executive authority of a government component may assign to the head of that
component any power conferred, or duty imposed, on -
(a) that
executive authority by national legislation; or
(b) any
official of the principal department of that component by national legislation.
Such assignment is subject to -
(a) the approval of Parliament of the
intended notice as contemplated in this subsection; and
(b) publication
by notice in the Gazette.
Any assignment would divest the
person who was vested with the assigned power or duty.
2.5 Delegation
of Powers and Duties
The
executive authority of a government component or the head of the principal
department of that component may-
(a) delegate
to the head of the component any power conferred on that executive authority or
head of the principal department by national legislation; or
(b) authorise
the head of the component to perform any duty imposed on the executive
authority or head of the principal department by national legislation.
Any person to whom a function has
been so delegated, shall exercise that function subject to the conditions the
person who made the delegation considers appropriate.
Any delegation of a function -
(a) shall
be in writing;
(b) 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
(c) may
at any time be withdrawn in writing by that person.
3. SPECIALISED SERVICE
DELIVERY UNIT WITHIN DEPARTMENT
3.1 Background
The specialised service delivery
unit organisational form applies predominantly to service delivery functions,
structured as a unit within a department and within a framework that requires
customised decision making powers, accountability and reporting arrangements in
order to accommodate a particular service delivery environment/challenge.
It provides a mechanism for the assignment or delegation of
government functions to a specialised service delivery unit, with a unique
identity, within a department.
Such unit would have less autonomy than a government
component. Opposed to other units in a department it would however have more
direct financial powers.
3.2 Establishment
An executive authority may establish a specialised service
delivery unit within a department (other than a government component) and
designate any such unit and the head thereof, or amend any such designation.
The MPSA gives effect to such establishment by notice in the Gazette.
An executive authority may only establish a unit if
the prescribed feasibility study is conducted and the outcome thereof
recommends its establishment.
The
head of a government component may have any one or more of the following
functions -
(a) functions
directly conferred by national or provincial legislation;
(b) functions
assigned in terms of the Public Service Act (see par 3.4) or other legislation;
and
(c) functions
delegated in terms of the Public Service Act (see par 3.5); and
(d) functions
allocated or transferred by the MPSA in terms of the Public Service Act (proposed
s3(4)(b) or (c) or 3A(b)).
Unlike
a government component, such unit may have functions regarding socio-economic
services (see par. 2.2 above).
3.3 Protocol
of Governance and Administrative Measures
The
executive authority shall approve a protocol for a unit which includes similar
matters as the notice for a government component referred to in paragraph 2.3.
3.4 Assignment
of Powers and Duties
As
in the case of a government component, a unit may have assigned functions (see
par 2.4 above).
3.5 Delegation
of Powers and Duties
Subject
to the relevant Treasury’s approval, the accounting officer of a department
must delegate all functions of that accounting officer in respect of the
financial management of a unit to the head of that unit. These delegations may
only be revoked under such circumstances as determined by treasury regulations
or instructions. Accountability for
these compulsory financial delegations must also be as determined by treasury
regulations or instructions.
The
functions of the executive authority or the head of a department in terms of
the Public Service Act (“HR functions”) in respect of a unit must, if
delegated, only be delegated to the head of that unit.
Functions
in terms of other legislation (other than PFMA and Public Service Act) may also
be delegated to the head of the unit.
ANNEX B
PUBLIC SERVICE AMENDMENT BILL [B31B-2006]:
TRANSFER OF EMPLOYEES WITHIN PUBLIC SERVICE (CLAUSE 20)
1. It is important to note that the current section 14(1) of the Public Service Act allows the transfer
of employees if it is in the public interest. The current section 14 (1) does not require the employee’s consent and
also does not require any due process (considering the views of the employee
first) before making a decision to transfer. It also (similar to the new
section 14(4)(b)), provides that an employee shall not merely because of
his/her transfer to higher post be entitled to a higher salary (s14(3)(c)).
2. The
proposed transfer clause in the Bill now incorporates due process before a
decision is made whether or not to transfer an employee in the public interest.
It is stipulated that before an employee is transferred in the public interest,
his or her representations must be duly considered. This is to align this
provision with the Promotion of Administrative Justice Act, 2000. Under both
the current Act and the proposed amendment, the employee may not suffer a
reduction in salary.
3. The
current section 14(1) of the Public Service Act has been the subject-matter of
court cases. In none of these cases has it been found unconstitutional (e.g.
rights to fair administrative justice and fair labour practices) or contrary to
the
“The legislature had in
mind the promotion of co-ordination, better utilization of scarce human
resources and the better management of possible conflict situations between
HoDs and political office bearers…” (par 41)
The Court re-iterated
that the legislature could not have intended that a head, by mere refusal to
consent, can be allowed to hamper the smooth running of the government.
4. In
Saloojee v McKensie No & Others (2005)14 LC, the Labour Court considered
various decisions to define the concept of “public
interest”, e.g.:
“a broad common sense
view of the position as a whole… the public should be better served if the
Applicant were allowed to proceed with its scheme than by the continuation of
the existing state of affairs”. Ex parte
President of the Conference of the Methodist Church: In re William Marsh Will
Trust 1993 (2) SA 697 (C)
“… promotes the general
welfare of the public which uses the public facility in question.” Rail Commuter Action Group v Transnet 2003(3)
BCLR 288(c)
“the common welfare” The New Shorter Oxford English Dictionary
Reference is also made to the
judgment in Transnet v Minister of Safety and Security 2003 (12) BCLR 1363
(SCA), where the court observed that “… the phrase by itself is not capable of
clear and comprehensive definition. The answer must lie in an analysis of the
context provided by the Act …”.
5. If
a department makes an irrational, unfair or capricious decision to transfer,
including for an ulterior purpose, e.g. to force the employee to resign, it
would clearly not be in the public interest as required by section 14. The
affected employee would be able challenge the decision on that basis. If
procedurally or substantially unfair, the decision would also be contrary to
the Promotion of Administration Justice Act. If the transfer unlawfully affects
the benefits of the employee, the employee could also refer an unfair labour
practice to the relevant bargaining council.
6. As
regards an employee transferred to a higher post not being entitled to the
higher salary, this is an existing provision in the Public Service Act as
indicated above. The reason for this provision is to prevent departments form
using it to appoint employees in higher posts without following normal
recruitment process (i.e. open competition).