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Public Service Amendment Bill [B31-2006] Presentation to Select Committee on Local Government and Administration, NCOP 5 June 2007. 1. OBJECTIVES OF AMENDMENT BILL (1). Main purpose to strengthen organisational & human resource matters in public service

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Public service amendment bill b31 2006 presentation to

Public Service Amendment Bill

[B31-2006]

Presentation to

Select Committee on Local Government and Administration, NCOP

5 June 2007

1


Objectives of amendment bill 1

OBJECTIVES OF AMENDMENT BILL (1)

Main purpose to strengthen organisational & human resource matters in public service

Legislation for a single public service dealing with 3 spheres of government underway – envisaged to be introduced in Parliament in 2008

Likely date of commencement of Single Public Service Act is 2009

Considered necessary to strengthen the Public Service Act urgently in some areas


Objectives of amendment bill 2

OBJECTIVES OF AMENDMENT BILL (2)

Experience has shown that some organisational & human resource arrangements in Public Service Act directly hampers internal efficiency and service delivery. These include-

Inadequate provision for deployment of staff

Some functions provided through

departments & not close to service delivery point & without direct accountability & decision-making by functionaries tasked with delivery; or

entities outside public service without direct control by political head


Objectives of amendment bill 3

OBJECTIVES OF AMENDMENT BILL (3)

Public Service Act prescripts often not adhered to, resulting in weak organisational and HR practices & legal disputes

Transgressing employees resign and join other departments without being disciplined

Employees dismissed for misconduct, even related to corruption, may be re-employed

Some provisions have resulted in legal disputes, while others are obsolete, overly complex or conflict with other legislation


Definitions

DEFINITIONS

  • Definition section replaced (cl 1), e.g.

    • “executive authority” instead of “executing authority”

    • Def. “employment practice” inserted

    • Def. of sector members (SAPS, SANDF, Educators, Correctional Services, Intelligence Services clarified

    • Def. of salary level and salary scale clarified

5


Powers of minister

POWERS OF MINISTER

Minister for Public Service & Administration (MPSA) enabled to apply, after consultation with other Ministers in question, any condition of service to educators/ SAPS/Correctional Services

Aim: to obtain, where desirable, greater alignment in conditions of service of general public service & mentioned sectors (cl 2)

Setting of norms & standards and other functions of MPSA clarified (cl 2)

Also power to establish advisory/consultative body iro functions of MPSA


Collective bargaining

COLLECTIVE BARGAINING

  • NB Existing provision - exercise of all powers by MPSA are subject to collective bargaining on matters of mutual interest only clarified (cl 7(a) and (b) – section 5(4) and 5(5))

  • Collective bargaining takes place in Public Service Co-ordinating Bargaining Council (PSCBC) & relevant sectoral bargaining council

  • Collective agreements concluded iro employees falling under Public Service Act to be regarded as Ministerial determinations to enhance implementation & compliance (cl 7)

7


Promotions in public service

PROMOTIONS IN PUBLICSERVICE

All SMS posts must be advertised outside public service & discretion to do same for other posts (open competition)

Currently, if existing employee applies for higher post in public service and is successful, he/she is regarded to be “promoted”

Definition of “unfair labour practice” in Labour Relations Act includes unfair conduct relating to promotion

Unsuccessful internal candidates may refer unfair labour practice disputes to bargaining council while external candidates can’t

Proposed that internal candidates be placed in same position as external candidates, i.e. neither may declare unfair labour practice dispute

References in Public Service Act to promotion omitted (e.g. cl 14)

NB Remedies under Employment Equity Act (unfair discrimination) & Administrative Justice Act (fair administrative action) will still be available to both internal & external candidates


Government agencies

GOVERNMENT AGENCIES

  • Current institutions under Public Service Act:

    • National departments and Offices of Premier – Schedule 1

    • Provincial departments – Schedule 2

    • Organisational components – Schedule 3

  • These institutions may be established & disestablished by President by proclamation in Gazette – internal organisation of public service

9


Government agencies1

GOVERNMENT AGENCIES

New organisational form, government agencies within public service proposed

Based on proposals by National Treasury & DPSA following review of national public entities

Head of agency to report directly to relevant executive authority (Minister/Premier/MEC) & head is also accounting officer of agency

Each agency to have principal department to assist executive authority with oversight (cls 9 & 10)


Government agencies2

GOVERNMENT AGENCIES

Agencies to be part of “public service” – Public Service Act & all its prescripts, apply to organisation & governance of these agencies as well as its staff

Staff are “public service employees”, e.g. appointed in terms of Public Service Act

Matters of mutual interest subject to collective bargaining in Public Service Co-ordinating Bargaining Council (PSCBC) & relevant sectoral bargaining council

Agency is a body created in terms of the Public Service Act like a national or provincial department


Government agencies3

GOVERNMENT AGENCIES

Agency may have original/assigned/delegated statutory functions

Original: legislation conferring functions directly on head of agency

Assigned: functions conferred on executive authority or official of principal department by national legislation may be assigned to head of agency in terms of Amendment Bill

Delegated: functions conferred on executive authority or head of principal department delegated to head of agency

Difference between assigned & delegated functions

Functionary delegating remains accountable

Functionary assigning, no longer accountable, but head becomes accountable


Government agencies4

GOVERNMENT AGENCIES

Since Parliament by legislation conferred particular functions on a functionary, it is proposed in Bill that

a Minister may only assign such functions to head of a government agency with Parliament’s approval

Such assignment must be done by notice in Gazette


Government agencies5

GOVERNMENT AGENCIES

Government agencies to be listed in Schedule 3 together with principal department

First proposed agency is Centre for Public Service Innovation having Department of Public Service and Administration as its principal department

Apart from different designations, currently no difference between Schedules 1 & 3 bodies (cl 38)

Current Schedule 3 organisational components (Independent Complaints Directorate, Intelligence Academy & Inspectorate for Social Assistance) proposed to be moved to Schedule 1


Government agencies6

GOVERNMENT AGENCIES

How is an agency created:

President may, by proclamation, establish-

national agency: on a national Minister’s request and advice of Minister of Finance & Minister for Public Service & Administration (MPSA)

provincial agency: on a Premier’s request, after consultation with Minister of Finance & MPSA


Government agencies7

GOVERNMENT AGENCIES

For each government agency, a notice in Gazette must

Must list relevant original functions of its head

Must refer to notice/s on assigned functions

May list delegated functions

Must determine reporting requirements to head of principal department to enable head to assist executive authority with oversight on policy implementation, performance, integrated planning, budgeting & service delivery

May include administrative or operational matters

May establish advisory or consultative board without executive functions for agency


Government agencies8

GOVERNMENT AGENCIES

Main differences between departments and government agencies

Government agency would be body established to perform specific functions

Unlike departments, an agency would not have core policy development function

Unlike most departments, agency may have assigned functions with accompanying direct accountability

A government agency is to be partnered with department which must assist executive authority with oversight in respect of policy implementation

Contrary to department, agency may have advisory or consultative board

Mechanism to bring back to public service institutions outside public service which have functions that should be performed by institutions in public service


Deployments

DEPLOYMENTS

  • Current Act allows transfer in public interest without employee’s consent or due process

  • In Bill provision for (a) transfers within public service and (b) secondments to and from public service

    • with employee’s consent

    • without employee’s consent but subject to due process (consider employee’s representations) & public interest requirement

  • Express provision for continued employment despite transfer within public service or to public service from another organ of state (cls 20, 21 & 22)

    • E.g. to retain pensionable service & leave credits

  • 18


    Enhancing compliance

    ENHANCING COMPLIANCE

    • To improve compliance with Public Service Act, MPSA enabled to conduct investigations & make binding decisions in event of contraventions

      • To avoid duplication, Public Service Commission is notified of investigations & their outcome (cl 7)

    • In addition-

      • executive authorities must discipline transgressing heads of department

      • heads of department must discipline transgressing employees in their departments

    • These transgressions to be reported to MPSA who is to report at least annually to relevant committees of national & provincial legislatures

    • MPSA may also report transgressing national EAs to Cabinet & provincial EAs to provincial Cabinets via Premiers(cl 24)

    19


    Implementing disciplinary sanctions

    IMPLEMENTING DISCIPLINARY SANCTIONS

    Currently, head of department has power to dismiss employee for misconduct while disciplinary code provides chair at hearing pronounces sanction

    Disciplinary code for employees

    on levels 1 to 12 in collective agreement

    on senior management level in ministerial determination, but similar to one in collective agreement


    Implementing disciplinary sanctions1

    IMPLEMENTING DISCIPLINARY SANCTIONS

    Current process

    Disciplinary hearing - employer appoints chair and also person to present employer’s case

    Finding by chair & if guilty, then pronounce sanction

    Employees on levels 1-12 – internal appeal; SMS employees no internal appeal

    Question: If employee don’t appeal or if no appeal, may head of department

    amend finding, i.e. guilty to non-guilty or vice versa?

    if guilty finding, amend sanction to lesser or harsher sanction?


    Implementing disciplinary sanctions2

    IMPLEMENTING DISCIPLINARY SANCTIONS

    • Since disciplinary hearing aims to ensure due process

      • propose in Bill that sanction imposed by chair of hearing must, subject to internal appeal (if any), be implemented by head of department

        (new section 16B in cl 24)

    22


    Implementing disciplinary sanctions3

    IMPLEMENTING DISCIPLINARY SANCTIONS

    Reasons for proposal

    Employer initiates/runs disciplinary process

    Head of department appoints chair

    Head is represented at hearing by employer representative – to be mandated by head to make representations

    Alignment with collective agreement & protect sanctity thereof

    Ensure fair procedure & protect independence of chair


    Implementing disciplinary sanctions4

    IMPLEMENTING DISCIPLINARY SANCTIONS

    Should provision be made for review by head of department?

    Labour Relations Act does not require internal appeal/review

    Review will delay process which already often takes to long

    Employee remains on payroll pending internal review

    Amounts to review of head’s own decision (appointed chair to make decision on his/her behalf) – tantamount to double jeopardy


    Implementing disciplinary sanctions5

    IMPLEMENTING DISCIPLINARY SANCTIONS

    Should provision be made for review by head of department (cont)?

    Review decision of head of department, as administrative decision, could be challenged ito Administrative Justice Act (in addition to Labour Relations Act)

    If findings of some chairs are considered problematic, it should be addressed through training and guidelines to ensure competent persons as chairs

    Sometimes departments charge employees not performing with misconduct instead of following more protracted poor performance procedure


    Continuation of disciplinary hearings in new department

    CONTINUATION OF DISCIPLINARY HEARINGS IN NEW DEPARTMENT

    Provision made for institution/continuation of disciplinary hearing by new department iro alleged misconduct by employee at his/her former department

    New head may do so or, if requested by former head, must do so

    Two departments must co-operate, e.g.

    Exchange documents

    Furnish written & oral evidence

    (new section 16B(4) & (5) in cl 24)


    Summoning witnesses

    SUMMONING WITNESSES

    MPSA empowered to make regulations on-

    power for chairs of disciplinary hearings to summon employees & other persons

    travel, subsistence & other costs for witnesses at disciplinary hearings

    (new section 16B(3) in cl 24)


    Grounds of dismissal

    GROUNDS OF DISMISSAL

    Grounds for dismissal aligned with those recognised under Labour Relations Act, i.e.

    Misconduct

    incapacity due to poor performance

    ill health

    operational requirements

    (new section 17(2) in cl 25)


    Abscondment

    ABSCONDMENT

    Abscondment provisions revised (new section 17(3) in cl 25)

    Period of absence reduced from one calendar month to 10 working days [educators: 14 days]

    Deemed resignation to exclude applicability of disciplinary procedures

    However, re-instatement procedure retained

    Accords with Supreme Court of Appeal judgment, Phenithi v Min of Eductaion & Others [2006] 9 BLLR 821 (SCA) iro similar provision in Employment of Educators Act

    Dismissal by operation of law. Not in conflict with LRA and Constitution because hearing not totally excluded (i.e. re-instatement procedure). Objectives are reasonable & justifiable


    Supervening impossibility

    SUPERVENING IMPOSSIBILITY

    Provision for supervening impossibility

    If employee is unable to “fulfill terms of contract” for reasons other than poor performance/ill health, e.g. long imprisonment (period to be prescribed)

    contract automatically terminates &

    employee is deemed to have resigned

    However, also provision for re-instatement procedure

    (new section 17(5) in cl 25)


    Prohibition on re employment if dismissed for misconduct

    PROHIBITION ON RE-EMPLOYMENT IF DISMISSED FOR MISCONDUCT

    • Prohibition on re-employment in public service for prescribed period of employees dismissed for prescribed categories of misconduct

      • Emphasize misconduct corrupt related misconduct

    • Different periods may be prescribed by regulation for different categories of misconduct

    • One/more categories of misconduct may have no prescribed period, i.e. therefore no prohibition on re-employment

      (new section 17(4) in cl 25)

    31


    Outside remunerative work

    OUTSIDEREMUNERATIVE WORK

    Proposed omission of current requirement that employee must place whole of his/her time at State’s disposal

    This is to accord with BCEA

    Propose inclusion of criteria for granting/ non-granting of approval for outside remunerative work, i.e. whether it would

    interfere with or impede effective/efficient performance of work

    constitute contravention of code of conduct, e.g. conflict of interest (cl 26)


    Grievances

    GRIEVANCES

    • Currently employees’ grievances must be attempted to be resolved within department, including referral to relevant Minister/Premier/ MEC, and only then referred to Public Service Commission (PSC)

    • If head of department has grievance – most likely to be about his/her Minister/Premier/MEC

      • Therefore proposed that heads of department be allowed to submit grievances directly to PSC

    • Employees, except heads, to first exhaust grievance procedure within department before referring labour disputes to bargaining council (cl 31)

    33


    Political rights

    POLITICAL RIGHTS

    Provisions iro political rights of employees omitted – dealt with in Constitution & limitations in code of conduct (current section 36)

    Candidatures of employees for legislatures are proposed to be regulated in Public Service Act (cl 32)

    May be candidates subject to prescribed conditions

    Only deemed to have resigned from date assuming duty


    Regulation making powers

    REGULATION-MAKING POWERS

    • Regulation-making powers aligned with areas that norms & standards may be determined & also simplified

    • Currently, authorises making of regulation for deviations for regulations

      • No provision for retrospective effect for deviations

      • Propose provision for this, but only if in the public interest and not to regulations, not collective agreements, regulating matters of mutual interest, permitted

        (cl 35)

    35


    Delegation powers

    DELEGATION POWERS

    Currently, Public Service Act only expressly authorises executive authority to delegate certain functions

    Similar to PFMA, propose comprehensive provision for delegation of all functions vested by Act or regulations in-

    executive authority

    head of department

    Conditions may be imposed when delegating functions

    Though delegated, original functionary remains accountable for how functions are exercised

    Delegated functions may still be exercised by original functionary

    Delegations may be withdrawn (cl 37)


    Siyabonga ri a livhuwa re a leboga dankie thank you

    Siyabonga/Ri a livhuwa/Re a leboga/Dankie/Thank you

    37


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