Public Service Review Report; Basic Conditions of Employment Act implementation

PUBLIC SERVICE AND ADMINISTRATION PORTFOLIO COMMITTEE
24 May 2000
PUBLIC SERVICE REVIEW REPORT; IMPLEMENTATION OF THE BASIC CONDITIONS OF EMPLOYMENT ACT

Documents Handed Out:
Basic Conditions of Employment Act: Briefing on the measures taken in anticipation of implementation of the Act in the Public Service (attached)

SUMMARY
The Public Service Review Report is not an annual report but presents a "Status of the Public Service" report. It is an attempt to create an understanding of all the dynamics in which the whole transformation effort is embedded. It aimed to open up debate on an informed transformation. The implementation of the Basic Conditions of Employment Act would probably be delayed because of the lack of agreement amongst stakeholders. Issues such as excessive leave pay and overtime, transformation and the improvement of quality of service delivery were discussed. Whilst the review report was useful in sketching the overall situation in the public service, there were still fundamental challenges facing it which needed to be addressed.

MINUTES
Ms Hanlie van Dyk, Chief Director: Sectoral Reviews and Analysis at the Department of Public Service and Administration (DPSA) gave the first presentation.

She said that the Review Report was not an annual report of the DPSA. It was a "Status of the Public Service" report which filled an important gap in developing an understanding of the structure, workings and challenges faced by the South African public service.

In broad terms the presentation focused on three issues:
1.Objectives with the report
2.Some salient facts
3.Challenges and the way forward

OBJECTIVES
In terms of the objectives the first thing the DPSA wanted to do was to make available information. It had been found that financial information flowed quite well into decision making processes. It was very structured and economics has always had an upper hand to the softer sciences since their systems were better and their modelling was better. DPSA however thought that there was a lack in terms of balance which informed decision making if there was only financial information. It felt that there was another component to decision making. One could not only look at efficiencies. There were considerations of sustainability, quality and equity for example. These things did not necessarily, immediately translate into an efficiency argument.

Secondly DPSA wanted to complement other government reports. It was found that the press to a large extent, became a source of information. DPSA wanted to educate the readers of the report by saying that there was more to life than what was seen right in front of a person. What was seen was heavily influenced by other factors and contextual issues going around. In terms of public management issues or South African public management transformational debates, DPSA said that the dominant issues which influenced what there currently was, was the shifts which there were internationally and the perception about public management. DPSA had experienced a paradigm internationally from a system of public administration where one "filled out the books" for instance, to a shift to an idea of managing, where resources were aligned much better and there was a better vision to drive through processes of strategic planning, human resource planning and financial integrated budgeting systems.

This whole shift had a tremendous impact on what was being done with the South African public service. At the same time, what was being said was that after 1994 there was a complete shift in terms of priorities of the government. It now had a people focus, an equity focus, a developmental focus and these types of shifts, by wanting to distribute the products and services of the state to the whole of the population, meant that there were very new and strong demands on the public service.

It was these focuses that actually now drove DPSA's transformation process. It did not say that transformation stopped with getting the numbers right. Transformation went deeper than the numbers. It was about how one worked and all the principles that the Batho Pele documents were capturing in terms of serving the people and the attitude around this and of making services more accessible and the attitude of trying to get as far as possible in terms of what DPSA's resource base was.

There was thus an attempt, by the report, to create an understanding of all the dynamics in which the whole transformation effort was embedded. The earlier documents which came out of the DPSA and similar types of bodies - even the white paper - had incredibly ambitious time deadlines in terms of transformation of the public service. Realistically one could expect that the transformation effort at shortest would reach into about a twenty year period. There were those who were impatient with this period but if over- ambitious goals were set, there would be disappointment.

The next aim of the report was to open up the space for debate and feed the debate. DPSA's senior team was absolutely committed to this concept. Nobody had straight answers, or the overall view but it was believed that through discussing and talking through things, and coming from multiple perspectives and influencing the debate, feeding it with hard evidence, one would make more progress than had been achieved thus far. There had to be an informed transformation. The debate had to be moved out of rumour mongering and sensationalism (which was often in the press about government) to where one received balanced views and hard evidence of the good and bad. Not all public servants were corrupt. To paint everyone with the same brush was not that useful.

SOME SALIENT FACTS
The Public Service currently stood at around 1,05 million people. It was thus the biggest employer in the country. Assuming this position meant that it could be quite instructive in terms of changing behaviour and setting example for good human resource practice. It had to move into this situation.

DPSA has chosen the sector approach since it believed that there were some patterns, which showed up better if one grouped departments into sectors. The groups went from national to provincial and in the social services there was health, welfare, education, arts and culture. In the core regulatory sector there were departments like home affairs, provincial and local government, DPSA and finance. Economic services went into issues such as agriculture, water and land. With infrastructure one dealt with "outsourcing" type of departments such as public enterprise, communication and transport. Criminal justice sat very closely to the cabinet cluster of defence and intelligence.

The biggest sector was the social services sector. This was because the government believed that much of the social service delivery should happen straight through government. Education and health were thus very big departments, which accounted for most of the public servants. The core was a relatively small group and was only two per cent. The criminal justice sector was the second biggest grouping with sixteen percent of the public servants. The core, despite the perception that it was small, was incredibly influential given its policy setting in terms of the macro frameworks. Defence and intelligence still had quite a large chunk of human resources for a country which was not in any immediate danger.

In terms of the racial composition of the South African Public Service, if one went into the crude numbers, it was found that the demographic profile was being approached. There was still an over representation of whites and an under representation of Africans. Coloureds and Asians sat pretty close to their normal proportion to the population. As soon as one moved deeper, away from this crude analysis, to skills levels, it was found that in terms of the lower skills levels, Africans were disproportionately largely represented while in senior management and higher skills levels, Whites were still over represented. Asians were also over represented. Lots had yet to be done to get the statistics correct through all the various skills levels.

In the core public service, where much of the policy framework was created, a high percentage of the core was made up of staff, who were under thirty years old. Even in the management positions and in the policy formulating positions, one found particularly young staff in these categories. DPSA concluded that this was one of the weaknesses in terms of getting policy that embodied good value systems and good principles implemented. It believed that people who were preparing these policies did not necessarily have the benefit of being experienced on the ground and knew what it meant to operate there. Their ability to carry out feasibility assessments in terms of implementation was limited. On the other hand with certain provinces such as the Eastern Cape and the Northern Province in particular, there were particularly aged profiles and there was no opportunity for young people to move in at the bottom ranks. Given the importance, which the public service played in these provinces as an employer, entry positions for people into the formal economy became very limited.

Review of Personnel Expenditure
Personnel expenditure review (PER) got pulled into chapter four of the report. The expenditure review at the moment informed the negotiation process which would be dealt with by Mr Rapea. He would go into more depth with the (PER). Since 1996 salaries had stabilised in the public service approximately according to the inflation rate. There have been unintended consequences in terms of the stabilisation and particularly in terms of the initial thinking of reducing the gap between the lower paid and senior management salaries.

Benefits
She said that benefits had become a very important component of the overall remuneration package of a civil servant. It had increased from 25% to 35%. Over and above the pension fund, equitable access in terms of benefits was still an issue. Secondly the state, as a very important large consumer of things like pension funds, medical aids, has never used its negotiation power as a conglomerate to bargain for good deals. It allowed individual members to actually negotiate there deals separately. DPSA believed that there was quite a substantial cost saving that could be achieved if this was handled differently, which could bring the percentage mentioned above, down as well.

Overtime
Overtime was another factor in the escalating salary bill. It constituted about 2% of the total salaries bill. Overtime was especially an issue for doctors, dentists and correctional services, so much so that special arrangements around these could be needed soon. In correctional services for example if someone's shift was scheduled for a Sunday, then that person would get double pay for that Sunday. The issue of what in fact constituted overtime in a seven day around the clock type of work-week had to be clarified.

CHALLENGES
Major lessons had been learnt in terms of the things analysed. These things had received quite wide publicity in the press. The challenges included:
-Improving coordination in government
-Improving management info systems
-Strengthening management capacity
-Uniformity and differentiation
-Improving quality of service
-Looking after PS human resources
-E-government

The second presentation (attached) was presented by Mr Alvin Rapea, DDG of the Department of Public Service and Administration.

Discussion
Mr M Sikakane (ANC) said that whilst the proposed implementation date for the Basic Conditions of Employment Act was June 1, negotiations about the Act were continuing in the bargaining chamber. He wanted to know what would happen in terms of implementation?

Mr Rapea said that it was critical that agreement was reached at the councils with the Trade Union movement and the Department of Labour, in terms of the variations and other issues. DPSA wanted negotiations to be settled and wanted this very important law to be implemented as soon as possible.

Mr Sikakane asked what would happen to someone's accumulated leave if the person quit after June 1 and such person had accumulated a lot of leave. Would the department pay out this leave?

Mr Rapea said that the reason for proposing that leave should be capped at 21 days when a person retired, was so that the State would not have an ongoing liability. There would be a phase-out process to cater for persons who had accumulated 300 leave days for instance.

The Chairperson wanted to know to what extent DPSA was collaborating with the Public Services Commission on the leave question.

Mr Rapea assured him that this was the case.

Mr B Mkhize (ANC) asked which categories of civil servants would be exempted from the Basic Conditions of Employment Act.

Mr Rapea said that those civil servants who earned below R89 000 per annum would fall under the Act. Thus the majority of civil servants would be affected.

Mr Mkhize asked if the restriction of paid maternity leave for only two babies meant that persons were confined to having two children. He felt that this was an unnecessary restriction.

Mr Rapea said that one was not prevented from having more than two children since the Basic Conditions of Employment Act allowed one to take unpaid leave for four months in addition to the paid maternity leave for two confinements.

In answer to the question whether the 21 days leave excluded weekends,
Mr Rapea said that the 21 days were working days and not weekends.

A committee member asked if it was possible for any agreements struck in negotiations on the Basic Conditions of Employment Act would result in amendments to the Act.

Mr Rapea said there was currently an amendment process taking place through the Department of Labour. The private sector, labour and DPSA had been consulted and had made input into this process. This process would not be influenced by the negotiation process. The Act would go through this process initiated by the President to review the labour laws.

The same member said that there was presently talk about personnel overtime expenditure which was potentially ruining the department. The committee had been told of overtime amounting to millions of rands per year. If this situation was left as is without amendment curbing such expenditure, there would be a public outcry over mismanagement of funds.

Mr Rapea said the approach of DPSA at the bargaining council was that it had to address both the service delivery concerns of the public and employee needs while maintaining a balance in this regard.

Mr D Sithole felt that the restriction on two confinements had to be reviewed This needed to be debated since he was not too sure about government policy in this regard. In the recent Woolworths case, the judge apparently said that the employer did not have an obligation to employ pregnant women. He was not sure whether this should be government's approach.

Mr Sithole requested a detailed assessment of the exact sectors affected by the overtime issue, the extent to which variation was requested and the reasons for the variation. Possibly re-engineering of work processes was needed to cut down on the overtime hours for which the police or the health sector wanted variation. He felt that the problems lay with management.

Mr Rapea said the sectors were health, education, police, correctional services and government printing works which were affected by the Basic Conditions of Employment Act. There was a document tabled with the unions which explained the areas within these sectors.

Mr Sithole could not understand the fact that in the review report, Government had on the one hand argued that managers were not properly skilled and did not have the expertise to deal with their work but on the other hand there was a request for greater flexibility.

Ms C September (ANC) said that the department had not mentioned education. She wanted to know whether the school holidays which teachers were entitled to, were included or whether they were counted as holidays.

The Sectoral Council was dealing with the issues of balancing the twelve days leave which teachers received every year with the holidays which they received.

A opposition party member said that if one increased the remuneration for overtime, one would get people tending to take more overtime which was a concern. Thus he was glad that this was an issue for negotiation.

Mr Rapea said that overtime in the health sector especially was a big issue as it had become part of people's salaries. To regularise this and develop a solution would assist the DPSA but they would have to negotiate this.

The same member asked how one ensured that sick leave was not abused.

Mr Rapea said that the DPSA wanted to meet the minimum standards of the Act. It was proposed to the trade unions that there had to be a separate policy for the management of disability - where people had sicknesses confining them for long time periods. In their assessment there was a tendency for people to abuse the sick leave situation. The human resources information systems in government had to be improved in order to monitor all of this.

Ms C September was concerned that the proposed implementation date was in a week's time. She, as a former trade unionist, was sceptical that an agreement would be reached within one week. She asked what the department's contingency plan if there was no consensus.

Mr Rapea replied that it was clear that a settlement had to be reached before implementation. There would be another meeting on 31 May 2000 but he doubted whether there would be any agreement by then.

In answer to a question on what was driving the proposed amendments, Mr Rapea said that if the proposals were from labour, then they would be a different driving force. If it came from DPSA, the driving force would be on service delivery.

Ms September asked if government paid UIF for maternity leave.

Mr Rapea said that if one needed maternity leave after using up the two confinements, the government would not pay UIF. One of the union demands was that the government should pay UIF for all confinements and the employees would contribute. The unions demands were therefore being negotiated.

An ANC member asked what was in place to improve quality of service.

Ms van Dyk said that there were several initiatives in place. DPSA had a whole branch dedicated to service delivery improvement. Emphasis was placed on service delivery innovation, sectoral views and analysis, management audits and assistance from provinces with implementation. There was also an initiative to conduct exit interviews with the public in key service delivery departments. In terms of the management audits, there was very important emphasis on service delivery improvement. Feedback also had to be obtained from the users of the services, which would assist departments to implement better work procedures and better management strategies. There were recommendations to institute service delivery awards as well.

The Public Services Commission was monitoring and evaluating the implementation of Batho Pele and they had a set of surveys which were done on departments. There was an exchange between them and the DPSA in terms of this information.

A committee member asked how far the DPSA had gone in addressing the improvement of management skills and the separation between this and technical skills.

Ms van Dyk said that this distinction was drawing attention in the proposed senior management plan. There were research projects in particular problem areas. It linked in with career path progression issues. This was an aspect of the management audit in the Department of Justice and would also be in education, health and so on. Once the projects came together, one would see policy positions being taken. However it was firmly on the map at the moment.

Mr Rapea added DPSA had conducted a senior management study on the ability of managers to manage and this study would presented to the committee before the end of the quarter. The detail of establishing core managers for service delivery improvement would be presented in next few weeks. In this report it clearly stated that specialists were to be rewarded by promotion as managers, even to the level of Director General. Proper leadership was needed to make delivery happen.

Acknowledging that transformation was not only one process but was made up of many facets, a member asked if the time frames for set goals were over optimistic. Was there a specific time frame programme for reaching goals?

Ms Van Dyk said that if the DPSA was to be faulted, it was that there was no clear programmatic approach to the transition. One might wonder if it was possible to go the programmatic route since there were so many variables. The DPSA had a three-year planning cycle and was starting to flag issues. This concern would be taken back to management but for the time being, the firmest indication of achievable timelines sat in the workplans and in the the department's strategic plan. Admittedly these could be stated more firmly.

An ANC member said that the report identified lessons learnt from the past. He asked if the DPSA had a broader plan to address these lessons.

Ms van Dyk said that many of these lessons were useful in terms of flagging the issues and sensitising people to them. The internalising of the lessons learnt found its application in how matters were dealt with further on, over and above the plans and projects of the department.

This committee member pointed out that there should have been sufficient time since the 1997 enactment of the Act to manage these negotiations. He felt that this delay could mean more than another year before implementation.

Mr Rapea said that negotiation with people was not like a certain scientific process where one knew the exact outcome. Failure to reach agreement in the previous negotiation process had derailed the whole process. There were times where labour had refused to return for a summit. This had impacted on the implementation process. DPSA's planning process had not been properly done but in future it would have to have a strategy to deal with this.

The meeting was adjourned.

Basic Conditions of Employment Act, 1997
Briefing on the measures taken in anticipation of implementation of the Act in the Public Service

Background
· The BCEA was enacted on 1 December 1997.
· In terms of the transitional arrangements of the Act the Public Service was afforded an extension of 18 months from the date of the commencement of the BCEA for implementation.
· The BCEA commenced 1 December 1998.
· The implementation date for the Public Service is thus 1 June 2000

The BCEA
· The BCEA is divided into 11 chapters & regulates a variety of substantive standards of employment. The following are of importance for the Public Service:
- Working time
- Leave
- Particulars of employment

Variations
· The provisions of the BCEA, except for the core rights, can be varied through collective bargaining in terms of sec. 49 of the Act.
· Applications for determination may also be made to the Minister of Labour for determinations, subject to the requirements of sec. 50 of the BCEA.

Core Rights
· the employer's obligation to arrange working time taking into account the health and safety & family responsibilities of employees
· the 45-hour working week
· the protection afforded to employees working between the hours 23:00 and 06:00
· 21 days paid vacation leave
· sick leave
· maternity leave
· the prohibition of certain types of child labour
· regulations issued by the Minister of Labour to regulate hours of work for health and safety reasons
· The Public Service respect the core rights and will adhere thereto.

Regulation of working time
Chapter 2 of the BCEA
· Ordinary hours of work
max hours are 45 per week (core right)
· Public Service
- Generally a 40 hour work week prevail in the Public Service.
- It would be also possible to comply in those instances where employees work more than 45 hours per week by obtaining agreement to either averaging hours of work/ to compress a work week as contemplated in sections 11 & 12 of the BCEA
- In fact the above is current practices on working time. What is required in terms of the BCEA, is a collective agreement that employees working hours can be applied accordingly

Overtime
· The BCEA limits the number of hours that an employee may work overtime to 3 hours per day and 10 hours per week
· The Public Service would be able to comply once the limits have been varied by collective agreement.

Meal Interval
· The BCEA requires that an employer must give an employee who works continuously for more than 5 hours a lunch break of at least one continuous hour. It may be reduced by agreement to not less than 30 minutes.
· Lunch breaks varies between departments/sectors.
· A minimum lunch break of 30 minutes presently applies in the Public Service. The Public Service already complies but need collective agreement to confirm current practices.

Rest Periods
· In terms of the BCEA an employer must allow a daily rest period of 12 consecutive hours and a weekly rest period of 36 hours
· Generally the Public Service complies. In specific instances the Public Service would be able to comply once the rest periods have been varied where necessary.

Night Work
· In terms of the BCEA night work is between 18:00 and 06:00 the following day
· may only be worked by agreement
· the payment of an allowance as compensation for work at that time of night (e.g. shift allowance) is required
· transport must be available at the beginning and end of a shift at that time of the night (transport not necessarily provided by employer)
· an employee who works between the hours 23:00 and 06:00
- informed of health and safety risks
- right to go for a medical examination at the employers expense
· The Public Service would be able to comply.
· Variations are required to deem night work from 19:00 to 07:00, which is current practice.
· The Public Service already pays its employees a night shift allowance

Obstacles
· Overtime rates:
- The overtime rate is set at one and one half the employees wage.
- The current overtime rates for ordinary overtime is one and one third the employees wage.
· The employer is currently negotiating with organised labour to retain the current overtime rates.

Obstacles
· Pay for work on Sunday:
- An employee who ordinarily works on a Sunday should be paid at one and half the employees wage.
- Currently an employee who ordinarily works on a Sunday receives his/her ordinary salary.
· The employer is currently negotiating with organised labour to retain the current overtime rates.

Leave
(Chapter 3 of the BCEA)
Annual leave
· Generally in terms of the BCEA an employee will be eligible to 21 days paid leave in a 12 month leave cycle
· Presently in the Public Service employees receive in general 30 days/ 36 days after 10 years service

Sick leave
· An employee is entitled to 36 days sick leave over a three year cycle.
· Presently in the Public Service employees receive in general 120 sick leave with pay & 120 days with half pay in a three year cycle. A DG may in his/her discretion grant up to 92 days sick leave with half pay if an employee has exhausted his/her sick leave provisions.

Maternity leave
· In terms of the BCEA an employee is entitled to at least four consecutive months' maternity leave. (unpaid)
· Presently in the Public Service employees is entitled to paid maternity leave for 2 confinements. Paid maternity leave may also be granted in exceptional cases. Otherwise an employee can either use her current vacation leave or unpaid leave for further confinements.

Family Responsibility leave
· An employee may be granted three days in a leave cycle
- when an employees child is born/sick
- in the event of death
· Presently departments may in terms of PSCBC Resolution 3/99 negotiate their own policies on special leave, which may also include family responsibility leave

Leave
(Chapter 3 of the BCEA)
· From the above it is clear that the Public Service's leave provisions is currently more favourable than that contemplated in the BCEA and that the Public Service complies.

Particulars of Employment and Remuneration
(Chapter 4 of the BCEA)
· The BCEA requires that certain particulars be provided and maintained in respect of an employee and that information be made available with regard to the employees remuneration, deductions, etc.
· The Public Service Regulations, 1999 already requires that such information be provided to an employee.

IMPLEMENTATION PROCESS
· The implementation process in the Public Service was launched in May 1998 with a workshop comprising of employer representatives and employee organisations
· Major employing departments/sectors such as Police, Education and Health have been assisted through the Department of Labour to identify their needs for purposes of variation by collective agreement in terms of sec. 49 of the BCEA.
· A workshop was also held to assist the other departments/provinces.
· An implementation guide has been made available to assist departments.
· Sectors/departments are presently in the process of negotiating the variations as required to implement the BCEA.
· Negotiations at the PSCBC

SUMMARY
· Public Service will implement the BCEA on 1 June 2000, except for areas being negotiated.
· To a large extent the Public Service already complies with the BCEA.
· Problem areas are being dealt with through the negotiation process as the BCEA requires.