Further Education and Training Colleges Bill [B23-2006]: public hearings
EDUCATION PORTFOLIO COMMITTEE
24 October 2006
FURTHER EDUCATION AND TRAINING COLLEGES BILL [B23-2006]: PUBLIC HEARINGS
Chairperson: Mr S Mayatula (ANC)
Documents handed out:
Written
submissions from:
Mmabatho
(handwritten document, Doc 1) and Sekhukhune FET
College;
University of the
Witwatersrand (Doc 2);
SADTU response to the
FET Colleges Bill (Doc 3);
Quality Management
Systems, Motheo FETCollege,
Bloemfontein
Mr AB Heydenreych of Motheo FET College
(Doc 4) “Draft Legislation on Further Education and Training Colleges”
Ms F Madi, Educator with South West Gtn
FET College (Doc 5)
Suid
Afrikaanse Onderwysers Unie : “Comment on Further Education and Training Colleges
Bill (B23B – 2006)”and “Comment on Select Committee Amendments to Further
Education and Training Colleges Bill (23A – 2006)” (Doc 11);
Association of
Private Providers of Education Training and Development (Doc 12)
South African
Students Congress SASCO (not numbered);
National Education
Health and Allied Workers Workers’s Union (NEHAWU)
submission
NAPTOSA’s further submission (Doc 13b)
NAPTOSA’s submission (Doc13)
FF Plus (North West) submission
FF Plus (Gauteng): Comments on the Further Education And Training
Colleges Bill
Association of
Private Providers of Education Training and Development submission (Doc12)
Freedom Front Plus submission
SUMMARY
The Further Education and Training (FET) Colleges Bill was due to be formally
debated and voted on by the Committee on 3 November. The Bill sought to repeal
the FET Act of 1998. It excluded schools from its provisions. It provided for
different categories of staff at a public college, with management to be
appointed by the MEC, and lecturers and support staff to be appointed by the
college, with funds allocated by the State. Most of those making oral
submissions challenged the Department’s view that lecturers and support staff
would not forfeit any privileges by being transferred to the colleges, and
several concerns were expressed about the apparent lack of consultation.
SAOU summarised that the Bill did not indicate how the new structure would
contribute to the advancement of scarce skills and enhancement of FET colleges’
products for the labour market. The methodologies proposed were similar to
those which were defective in other arenas. Labour unrest with regard to the
medium-term effective privatisation of the Colleges and potential job losses
could constitute a barrier to the Bill’s objectives.
Wecare believed there should be a prioritising of
regulations for unregistered colleges to report to the Department. It should be
made clear who was in authority over the colleges. There was a need for
encompassing legislation, including Department of Labour input.
Ms F Madi, was concerned about lack of clarity
regarding conditions of employment and benefits, and mentioned a number of
specific benefits. She was also concerned about lack of capacity in College
Councils. Questions related to Section 197 of the Labour Relations Act and the
autonomy, the status of the colleges, and the funding of costs of programmes.
The South African Democratic Teachers Union (SADTU) focused on the lack of a
full consultative process. It was unwise of the Department to expect support
when they had marginalised stakeholders. It was also concerned on the
implications for FET Schools, the new school curriculum policy, and access and
mobility. There was no certainty about the future of those exiting the
colleges. Specific concerns of wording were then raised, and clarification
requested on several clauses. Despite its criticisms, SADTU welcomed processes
to expedite skilling programmes in the FET sector.
The National Educators Union was opposing the Bill because of their concerns
regarding collective bargaining and the employment status of the workers. These
had not been tabled at the Public Service Co-ordinating Bargaining Council or
the Education Labour Relations Council . The Bill
should be sent back for further engagement.
They asked the Committee to send the Bill back to the Department for
engagement with labour.
The National Professional Teachers Organisation of
South Africa, focused on the lack of consultation during the Bill’s
development and the transfer of all employees below the level of management
from the State to councils. They felt the State should have negotiated with the
relevant councils. Should Clause 54(1) be enforced without the employees’
consent, it would be an unfair labour practice. NAPTOSA was also concerned that
there would be an attempt to change conditions after appointment to college
council posts. Rebuttals were given for the arguments that transferring
contracts would improve productivity and motivation. There was a concern that
the divide between the rich and poor colleges would be perpetuated. The
sentiments of the Bill were noble, but it was not possible to achieve them by
this Bill. NAPTOSA offered a number of alternatives for funding and post
provisioning. This would enable colleges to meet critical needs, be autonomous
and flexible.
The South African Students Congress said that
student input had an invaluable role to play. The FET system was fragmented,
racially divided, undemocratically governed and sexist and It highlighted
certain clauses and offered alternatives in respect of interim college councils, and the need for a
Student Services Council as well as a Students Representative Council (SRC) The
role of the National Board for FET should be clarified. The Bill should be
explicit about the length of absence leading to appointment of an acting
principal. The FET sector should have its own policy advisory and quality
assurance body similar to higher education.
The Freedom Front submitted that Clause 4 should be reconsidered. Uncertainty
about salaries and benefits was cause for concern. Clear guidelines on funding
programmes in 2007 were needed. Educators would have no job security. It was
also unhappy about lack of consultation. Practically speaking, few colleges
would have the ability to administer their own affairs ,
there was no indication where funding would come from, and fewer courses would
be offered. New inequalities might result.
MINUTES
Submission by Suid-Afrikaanse Onderwysunie
(SAOU)
Mr Justus Prinsloo, Legal Advisor, Suid Afrikaanse Onderwysunie (SAOU), said that the Union supported the
objective to recapitalise Further Education and Training (FET) Colleges to
enable them to respond to the needs of the country and become relevant to the
world of work. Despite submissions to the Ministry of Education, interactions
with the Minister, Deputy Minister and other senior officials of the
Department, the Bill now before the Committee differed only very slightly from
the original draft. In light of this, the SAOU questioned whether the
objectives would be achieved. It was not happy with some of the clauses and
proposed methodologies. The upward shift of the challenges of the curriculum
would inhibit admissions and exacerbate shortage of certain basic skills.
Centralised planning for skills development was required, together with
mechanisms that ensured the institutional development of those skills. The
autonomy of schools and higher education institutions had had to be reduced by
the State in order to attain goals which the education authorities considered
important. The management model proposed, whereby the FET colleges would fall
under the control of the provincial education department, might lead to counter-productive
tensions and stresses, similar to the relations between governance structures
at schools and higher education institutes (HEIs),
and provincial and national education departments.
A multi-tiered system where some employees would be in the service of the State
in terms of a different Act and others transferred to the establishment of the
College Councils once the transitional provisions had expired would lead to
potential job losses. Conditions of service would have to be dealt with at each
institution separately. This was a significant sticking point and the
possibility of labour unrest existed.
Mr Prinsloo therefore summarised that the Bill did
not indicate how the new structure would contribute to the advancement of
scarce skills and enhancement of FET colleges’ products for the labour market.
The methodologies proposed were similar to those that were defective in other
arenas. Labour unrest with regard to the medium-term effective privatisation of
the Colleges and potential job losses could constitute a barrier to the Bill’s
objectives.
Discussion
Ms M Mentor (ANC) asked who would be the employer.
Mr Prinsloo stated that Clause 20 of the Bill clearly
indicated that the college was the employer but management would be appointed
in terms of the Public Service Act while the rest would be college employees.
Advocate C Boshoff, State law advisor, said that
transfer and appointment were not separate and all conditions of service would
also be transferred. The Bill drew in Section 197 of the Labour Relations Act
(LRA).
Ms Penny Vinjevold, Deputy Director-General, Further
Education and Training, Department of Education (DoE), said that a programme
board would determine programmes to be offered after confirmation with the MEC.
Over the last two years, college staff had been given R10 000 each for
professional development. College enrolments were expected to increase from 400
000 to 1m by 2010.
Mr Prinsloo did not agree that Clause 197 was
relevant, and believed Adv Boshoff was incorrect in
stating that the Bill said that posts and staff in the old establishments would
automatically transfer. He enquired, if there was automatic transfer, when it
would it happen?
Mr A Gaum (ANC) asked Mr Prinsloo to propose an alternative wording, which he did:
He proposed that in terms of Section 197 of the Labour Relations Act, the
lecturers were automatically transferred, once the new institution was
established.
Submission by Wecare
Mr John Bruce, Chairperson, Wecare, explained that Wecare was an embryonic non-government organisation. He
circulated a number of documents pertaining to litigation between himself and a law school and explained that he had a
restraining order against his mentioning a certain party. He began to complain
of the exploitation of vulnerable people by fly-by-night private colleges
offering useless diplomas. The Chair asked him to confine his submission to
specific proposals regarding the Bill.
Mr Bruce said that there should be a prioritising of regulations for
unregistered colleges to report to the Department. The Department should
compile a questionnaire of existing and forthcoming laws so there could be a
clear idea of whose authority that college should fall under. There was
enormous scope for undermining the education system. Legislation should be more
encompassing and the Department of Labour should be drawn in.
The Chairperson stated that existing legislation prescribed how institutions
could be accredited and how accreditation and registration should be
advertised.
Mr Bruce responded that many private colleges advertised untruthfully and there
was an absence of policing.
There were no further questions from the Committee. .
Submission by Ms F Madi
Ms F Madi, an educator with 15 years service in the Gauteng Department of Education, indicated that her
concerns emanated from lack of clarity regarding conditions of employment and
benefits, including protection in terms of retrenchments due to operational
requirements, medical benefits, leave, housing subsidies, the 13th
cheque, bursary possibilities, and the gains accrued through the Education
Labour Relations Council regarding salary progression and increments.
Ms Madi was also concerned about lack of capacity in
College Councils, whose members did not have enough time to attend to
governance.
Discussion
The Chair asked the Department to respond to these anxieties.
Adv Boshoff and Ms Vinjevold
said that the Department wanted to preserve autonomy but maintain a narrow
linkage with College management, who would not be involved in the day-to-day
running of the College. Adv Boshoff reiterated that
Section 197 of the Labour Relations Act would ensure that all employees would
be transferred.
Ms Mentor asked whether FET colleges were “now private institutions”.
Ms Vinjevold said that they were not. A college
academic board, in consultation with local government and industry, would
design programmes that had to be approved by the MEC. Secondly, the funding
formula would reward efficiency and be pro-poor.
Adv Boshoff added that the costs of accredited
programmes, including lecturers’ salaries, would be funded by the State and
colleges were not as autonomous as HEIs.
Mr G Boinamo (DA) requested that the Bill be made
clearer regarding Section 197 and benefits. Adv Boshoff
responded that when the drafters of the Higher Education Act had included more
of the clauses from the Labour Relations Act, they had been criticised on the
basis that this was unnecessary since the LRA was readily available.
Submission by South African Democratic Teachers Union (SADTU)
Mr Mafika Cele,
representative of the South African Democratic Teachers Union (SADTU) focused
on a few main areas. The Union was concerned about the consultative process.
The National Senior Certificate (NSC) policy, which replaced the FET
Certificate (General), had already been implemented and college mergers had
already been completed before the Bill was open for public comment. At the time
of the consultative meeting between the Department and SADTU, the Bill was in
its eighth draft. It was unwise of the Department to expect support when they
had marginalised stakeholders. Secondly, the Union was concerned about the
implications for FET Schools. Although the Bill addressed the college sector,
it had serious implications for FET-band schools which would no longer be able
to offer subject combinations as contained in the repealed Qualifications and
Assessment Policy Framework. This would negatively affect the redesign of FET
school curricula, most especially those schools in historically poor areas, and
skew the FET school landscape in favour of the well-resourced schools and
mega-colleges.
Thirdly, the new national school curriculum (NSC) policy reduced the subject
combination to any three NCS approved subjects. Without a clear programme to
compel and facilitate schools’ improvement of their curricula, disadvantaged
schools would continue with the current uncoordinated subject offerings. The
framework for curriculum development should complement skills development, with
input from commerce and industry. It was hard to envisage how disadvantaged FET
schools would achieve this. The Bill clearly stated that a purpose was to
prohibit schools from offering further education and training. If schools were
not supported to become part of the National Skills Development Strategy,
colleges alone would not offset the skills shortage. He cited the example of a
Western Cape engineering and technology focus school that had successfully
implemented a programme to address the skills shortage. All schools should be
assisted to develop their curricula, in a process similar to college
recapitalisation.
A further concern was the areas of access and mobility. Over 25% of young South
Africans were marginalised in a number of social and economic spheres. A
multi-pronged strategy was necessary to alleviate this problem. A concern was
that fees would make FET colleges inaccessible to these youth. In addition
there were questions unanswered, such as whether those exiting the colleges
through the new programmes be immediately employable
or would they still have to undergo extensive occupational training before they
became productive employees. The impression was that FET colleges were not
providing the needed occupational training.
Specific concerns of wording were then raised, and clarification requested on
the following clauses:
-Clause 6(2)(e): was not clear on the merging
colleges’ obligations in terms of the labour laws?
-Clause 6(5):queries were raised on the oversight role
of the MEC, and how it would ensure compliance. It did not say whether workers
and educators would be involved in pre-merger meetings
-Clause 7: failed to define the process
-Definition of educator: This definition in the Bill differed from the
definition in the Employment of Educators Act
-Protection of employees in Clauses 6(8) to (12): There were some aspects in
which the protection was insufficient, compared to Section 197 of the Labour
Relations Act. SADTU proposed alternative wording.
-Clause 6(13): This failed to provide properly for rationalisation and failed
to cross reference to Section 189A of LRA. SADTU submitted that sub-clause 13
should be deleted. If this was not possible, then the sub-clause must be
amended to include a reference to Section 189A (as well as Section 189).
-Clause 10(2)(b): This had been deleted. SADTU felt this a subtle form of privatisation of FET colleges.
-Clause 21:This was inconsistent with the Labour
Relations Act and SADTU recommended that the clause be deleted. Also Clause
21(4) also conflicted with the provisions of the LRA which provided for
disputes to be referred to a bargaining council or the Council for
Conciliation, Mediation and Arbitration.
-Clause 22: SADTU requested clarity as to the process mechanism and a
discussion on the practical implications of “differentiation”.
Despite its criticisms, SADTU welcomed processes to expedite skilling programmes in the FET sector.
Discussion
Mr R van den Heever (ANC) said that the Department
should provide clarity where requested, particularly on the issues of
consultation and rationalisation or redeployment. He wanted to know the extent
to which SADTU would find redeployment acceptable.
Mr Boinamo said that Clause 3(a) in Chapter 2 should
not have been dropped.
Ms Vinjevold said that the eighth draft of the Bill
was an internal document and the Department had engaged with the unions and
were now engaging with the public. Adv Boshoff said
that 72 individuals, organisations and other departments had commented and
amendments had been made in response. Regarding retrenchment, the bill provided
a framework for the present and the future. Chapter 2 was not application to
transition or rationalisation.
Ms Vinjevold further explained that according to the
National Qualifications Framework (NQF), schools could offer Grades 10-12 (NQF
levels 2, 3 and 4). In that way they offered FET qualifications. Colleges
offered qualifications at levels 2-5. It was important to distinguish between
the two types of FET qualifications because colleges were for older students, The
Bill aimed to maximise output in the FET sector. She rejected SADTU’s concern that school leavers were not employable.
All the research showed that ‘a good matric’ was the
most important entrance qualification for work. The construction industry
wanted people with strong mathematics and language skills because they could be
taught construction skills on the job.
Mr Cele responded that the introduction of the NSC
meant that schools could offer three technical subjects. It was crucial to ask
how schools could broaden their curricula; there were avenues beyond
mathematics and literacy.
The Chairperson responded that the Bill did not prevent that from happening.
Submission by National Education, Health And
Allied Workers Union
Mr Sydney Kgara, Parliamentary Officer, National Education, Health And
Allied Workers Union, NEHAWU, said that the malaise in the education
sector was caused by the State’s failure to invest in technical education to
the extent that it had invested in higher education. The wages and conditions
of workers, including teachers, did not improve and private colleges
mushroomed, many of them taking advantage of the poor. The challenges facing
society called for broader and more expanded education and training.
NEHAWU was opposing the Bill largely because of their concerns regarding
collective bargaining and the employment status of the workers. These had not
been tabled at the Public Service Co-ordinating Bargaining Council (PSCBC) or
the Education Labour Relations Council (ELRC). They asked the Committee to send
the Bill back to the Department for engagement with labour.
The Bill not only departed from Education White Paper 4 but contradicted it.
Unilateral determination of workers’ employment status from public service
workers to college employees and the exclusion of schools from the FET band
were crucial issues. How councils were constituted and established and the
conflict of interest of council members were also cause for concern. Other than
labour-related matters, there were no substantial provisions in the Bill and
the Department should simply amend the FET Act of 1998. Mr Kgara
listed the clauses that related to labour. The Department was drawing up
legislation relating to collective bargaining as if it was government policy
when they should be engaging with labour beforehand. The move to transfer the
employment of educators and support staff from the state to colleges and the
consequent attempt to undermine collective bargaining was an attempt to
restructure the FET sector by means of bargaining at an atomised institutional
level in order to move towards outsourcing and, privatisation the casualisation of workers. This departed from the White
Paper policy but the FET Act of 1998 did not.
The exclusion of schools from the FET band was also a grave and crucial
departure from policy articulated in the White Paper that “… targets for FET
provision take full account of the senior secondary school sector”. The attempt
to do away with FET delivery in schools was part of an attempt by government to
circumvent the Constitutional right to a basic education, including adult basic
and further education, which must [be] progressively available and accessible.
Students carried the financial burden for FET as government offered no
financial aid for FET. If FET were understood as part of schooling, the
government would be obliged to ensure access despite poverty.
NEHAWU provided detailed proposals regarding acceptable wording of the Bill. Mr
Kgara finished by saying that FET should be viewed as
an integrated part of education and training and higher education and not a
separate entity. While opposing the Bill on matters of collective bargaining,
the proposals regarding other areas of the Bill would strengthen the sector if
adopted. The union would consider options should the Bill proceed containing
provisions that should be subject to collective bargaining.
Discussion
Mr Gaum said that the Bill should have been
tabled at the PSCBC and asked did this mean that there was not proper
consultation.
Mr Boinamo asked whether the Bill marginalised
schools.
Ms Vinjevold answered that the Minister was clear
that schools should offer general education and colleges should offer
vocational education. The 236 college sites were not well distributed. Fourteen
out of 29 NSC subjects had vocational aspects but were not workplace based. All
learners had access to vocational subjects and the new Bill would improve
access.
Adv Boshoff said that the decision whether to
promulgate the Bill would be taken by parliament and not the employer. The
Department had tabled the Bill in the ELRC but nothing could be done as both
the Department and its employees were subject to the Bill. Consultation would
follow the enactment of the Bill and any agreements reached beforehand would
have been ultra vires.
Mr Kgara said that NEHAWU understood the
Parliamentary process, but the Department was introducing the Bill and it
should have been consulted about beforehand. The outcome of the work of
drafting a Bill should not be litigation. Once the provisions that NEHAWU was
concerned about were passed, they became law. NEHAWU had a duty to challenge
them beforehand because they affected union members.
Submission by National
Professional Teachers Organisation of South Africa.
Mr Dave Balt, President, and Ms Sue Muller, Director,
National Professional Teachers Organisation of South
Africa, focused on the lack of consultation during the Bill’s
development and the transfer of all employees below the level of management
from the State to councils. They asked why the State was attempting to effect the transfer of employees by means of an Act instead
of negotiating in the relevant councils. By ignoring the negotiation process,
the State had infringed on the labour rights of the employees. Should section
54(1) be enforced without the employees’ consent, it would be an unfair labour
practice.
When the Bill appeared before the National Council of Provinces on 17 October
2006, the Director-General of Education said there was protection for lecturers
in that conditions of service would not be less than those in the Public
Service Act. Reference to the Public Service Act was removed from the Bill
after the first round of public comment. NAPTOSA was also concerned that there
would be an attempt to change conditions after appointment to college council
posts. None of the State’s arguments that transferring contracts would improve
productivity and motivation were valid. The presenters gave details and
rebuttals of these arguments.
Because of their location and existing resources, wealthier colleges would be
able to offer a wider range of programmes, generate more funds and attract
better staff than poorer ones and the divide between the rich and poor colleges
would be perpetuated.
Tensions would probably arise between State-employed management and the
remainder of staff who would be council-employed. The amalgamation of colleges
of education with universities in resulted in decreased enrolment. There was a
risk that the same would happen in FET colleges.
The sentiments expressed in the Bill were noble but unless the bill made it
possible to achieve its intentions, the words were no more than rhetoric. Some
statements in the Preamble, however, were worrying. References to the need to
develop intermediate to high level skills and to provide access to work and
higher education made no reference to developing low entry–level skills. If
public FET colleges did not provide access to these qualification, the question
remained how would access be provided and at what cost to learners
NAPTOSA submitted that FET colleges should not be limited to offering 11
Department-approved national certificate programmes at the same time as the
present N1 to N3 certificates are phased out, because this would exacerbate the
skills shortage. It would also mean that standards-based qualifications and
skills programmes would only be available at private colleges at increased
costs to learners.
NAPTOSA offered a number of alternatives for funding and post provisioning.
This would enable colleges to meet critical needs, be autonomous and flexible.
There was no time for questions or discussion as NAPTOSA had used its allotted
30 minutes for their presentation.
Submission by South African Students Congress
Mr Tembile Yako,
Secretary-general, South African Students Congress(SASCO) said that SASCO was deeply concerned
about the prevalent view among policy formulators regarding the role of
students in shaping the FET system as student input had an invaluable role to
play.
The FET system was fragmented, racially divided, undemocratically governed and
sexist and SASCO generally accepted the introduction of the Bill. Mr Yako highlighted certain clauses and offered alternatives.
Interim college councils should be composed of a portion of members of the
merged institutions’ councils as including all members may result in unworkable
structures. Management and students should sit on the interim council as
observers. A Student Services Council as well as a Students Representative
Council (SRC) was needed. The council and the students themselves should
determine the SRC constitution, without lecturers’ participation. The
appointment of an administrator should not only be at the request of the
council as the council may be complicit in the matter to be investigated. The
role of the National Board for FET should be clarified. The Bill should be
explicit about the length of absence that may lead to the MEC appointing an
acting principal, and also about how long an acting principal may be appointed.
The FET sector should have its own policy advisory and quality assurance body
similar to higher education.
Discussion
Mr Gaum said that legislation often amended the
common law and asked why Naptosa alleged that this
was unconstitutional.
Mr Boinamo said that NEHAWU, COSATU and Naptosa had alleged that there was no proper consultation
and that negotiations began after the eighth draft, which was unfair.
The Chairperson reminded him that the purpose of the meeting was not to debate
but to gain an understanding of the public’s concerns.
Mr Boinamo then asked for clarity on the transfer.
Adv Boshoff said that a business included a whole or
part and employees could be transferred from one part to another. A cleaning
service, for example, had been transferred from one part of a business to
another and the Courts had ruled that it was legitimate to transfer the
cleaning staff.
Mr Balt answered that they would have to agree to
disagree – the function wasn’t being transferred but the staff were.
Submission by the Freedom Front
The representative for the Freedom Front (FF) submitted that the provision in
Clause 4 that an MEC would have the ability to declare any institution a public
college if it offered FET should be reconsidered. Uncertainty about salaries and
benefits was cause for concern. Clear guidelines on funding programmes in 2007
were needed. Educators would have no job security as employment would depend on
student enrolment. This could result in an outflow of expertise. The FF was
also unhappy about lack of consultation and that the Bill was rushed through
some legislatures. Few colleges would have the ability to administer their own
affairs regarding salaries. There was no indication where funding would come
from. The total number of courses offered would be fewer than previously, which
might mean that FET colleges could not sustain themselves financially and new
inequalities might result.
Submission
There were no questions for the Freedom Front.
The meeting was adjourned.