Committee Report on DEL and entities Q3 Performance; Committee Programme

Meeting report

Report of the Portfolio Committee on Employment and Labour on the Third Quarterly Report Regarding the Performance of the Department Of Employment and Labour and Its Entities in Meeting Strategic Objectives for 2021/22

The Chairperson said the Members should look at the introduction to the report of the Portfolio Committee on the third quarter performance report of the Department of Employment and Labour (DEL) and its entities for 2021/22. If there were any areas in the introduction that they were uncomfortable with, or wanted amended, the Committee would reflect on that. After the introduction, if there were any comments, Members could make them. The Committee would then go to its observations and recommendations.

Committee's observations

The  Chairperson said the main focus would be on the observations, which was item number five in the report.

Mr M Nonstele (ANC) said that in 5.1.1, the last sentence said: “However, underperformance was addressed through consequence management.” He had raised that so it could be flagged for the recommendations, because he did not understand exactly what this sentence intended. Was it just to say the Department would not talk about underperformance?

The Chairperson asked him if that sentence should be removed or re-worked, was not meant to be there, or did not make any sense.

Mr Nonstele said the problem was that the sentence responded to two things without concretely saying what steps had been taken. The issue was underperformance, and it did not specifically indicate what steps had been taken to address that, except just to say it was underperformance. The Committee should therefore not skip past it, because it would confuse the Members when they went to recommendations. There might be a need to reformulate it to give proper meaning to the Committee's recommendations.

Ms C Mkhonto (EFF) said this was the least of the Committee’s observations. It had observed the underperformance, as per the report from the Department. She did not remember the Committee receiving proof that underperformance was being addressed. She would prefer the Committee to speak about things it had seen, because the word “however” made it seem like it was justifying the underperformance. She suggested the sentence end with “that privilege," and that “however, under-performance was addressed through consequence management,” be removed.

Dr M Cardo (DA) thought the link needed to be explained better, so that it moved from talking about study leave to underperformance. It was not quite clear how the first and second sentences were linked. He proposed the question of underperformance was addressed through a separate bullet point, or it was made clear why it was talking about study leave, the absence of staff members between October and December, and underperformance in the same sentence. It needed to be made clear, or a separate bullet point should be devoted to the subject of underperformance.

The Chairperson said in the report, the issue of underperformance was reflected. She agreed that the word “however” created confusion, so they should try and get a formulation that would enable it to observe underperformance in the Department, or delete it. Underperformance was reflected in the report. It would be better if there was a separate re-working of that sentence. If they did not agree, the Committee could go the route Ms Mkhonto had proposed, as she agreed that concrete evidence was never given in the report of what the Department did with consequence management. Therefore, it could not link that to underperformance that was addressed by the processes of consequence management. She hoped she was not creating any confusion, but that would be her intervention and suggestion to the Committee on the matter.

Mr Nontsele did not want to confuse the debate. He said Ms Mkhonto was correct. This matter had not been entertained. It did not arise in the recommendations. It would not be proper of the Committee to remain silent on the observations on the matter. He supported the new section proposed by Dr Cardo. He suggested there should be a new 5.1.2, so that it spoke about the underperformance separately, where it noted that there was no evidence of how the Department had taken steps to deal with underperformance. As it stood, the sentence had a negative effect. It was almost telling the Committee not to ask why the Department had not met its targets. It could easily be interpreted in that fashion. It needed to be removed from that paragraph, which was 5.1.1. and have a new formulation, which would be the Committee’s own observations. That was his proposal.

Before it was removed, the Chairperson asked Ms Mkhonto and Dr Cardo if they were comfortable with what Mr Nontsele proposed on the new 5.1.2. in its observations of the Department’s underperformance.

Ms Mkhonto was comfortable as long as its observation would not include matters it was not aware of and things that were not reported to it.

Dr Cardo was also comfortable, but wanted to see a formulation before moving forward.

The Chairperson asked Mr Nontsele to put this in the chatline so the Committee could move to 5.1.2, which would now be 5.1.3.

Mr Nontsele said his formulation was a simple sentence to correctly point out that as a Committee, it had not seen or observed any evidence of consequence management that had been taken on the failures outlined in 5.1.1. It was just a straightforward statement, so that it flowed from 5.1.1.

The Chairperson asked the secretariat to write the formulation and show it to the Committee.

She moved on to 5.2 on the Commission for Conciliation, Mediation and Arbitration (CCMA), 5.3 on Productivity SA, and 5.4 on the National Economic Development and Labour Council (NEDLAC).

Mr S Mdabe (ANC) referred to 5.3, where he thought there was a matter that had been raised on the human resources (HR) department of Productivity SA. He could not recall the formulation or the context in which it had been raised, but it was on the underperformance with the non-filling of vacancies. It was either on Productivity SA or Inspection and Enforcement Services (IES) inspection enforcement. He thought that observation needed to be reflected somehow. He could not recall when it was, or to which entity that matter was referring.

The Chairperson asked if there was anybody that could remind the Committee. If her memory served her well, it referred basically to the Department itself.

A Member agreed the Chairperson was correct, because the point Mr Mdabe had raised was about how the Department dealt with non-achieving entities, and that going forward, these were being reorganised under Productivity SA. He remembered that kind of reference, but not under Productivity SA -- it had come from the Department itself.

The Chairperson proposed that when Members agree on a broad comment addressing HR issues in the Department and its entities, it could be put down as an observation that was of concern to the Committee. This issue of vacancies cut across in the Department was a matter of serious concern, and she wanted it to be reflected as such. She hoped she had covered Mr Mdabe’s concern, so that when it went to the recommendations, it would be a broad recommendation that addressed the DEL and its entities.

Mr Mdabe supported her proposal.

The Chairperson said that if there were any comments on the Compensation Fund, they would be included in a broad note which affected the Department and its entities. She asked the secretariat to record that the Committee noted the issue of non-filling of vacancies in the DEL and its entities with serious concern. She moved to the Committee’s recommendations.

Committee's recommendations

Mr Nontsele said that because the Committee had inserted a catch-all provision in the observations, which was the last point, he was unsure whether it would still follow section by section with the recommendations. Nevertheless, he wanted to continue on the point it had raised under observations on the failure to deal with issues of consequence management, and the failure to achieve targets under DEL.

The Chairperson said the Committee could proceed with a recommendation on that point of consequence management.

He proposed there should be a new 6.1.4, which compelled the Department within a designated period to provide evidence that steps had been taken to deal with the failure to reach targets, particularly targets on employment provisions. The problem here was that the reasons provided by the Department, of personnel taking leave towards the end of the year, could not be acceptable. While the Committee supported the initiative of personnel improving their skills by writing final examinations, it could not be dealt with in a manner detrimental to the overall responsibility of the Department, which was to fill vacancies and meet targets. The point would be that the Department must provide the Committee with the concrete steps it had taken to deal with this matter in its next report. It could not be a matter that was dealt with through transferral to another department. The failure of a department was then transferred to another department. What if the failure became a formal challenge? The failure should be dealt with, and then the restructuring process would be a different matter that should not be impaired by the very same failures that were inherent in the branches of the Department. If Members looked at 6.1.1, it said “the vacant funded posts that cannot be filled by other branches of the DEL be transferred to the IES branch.” It was proposed that the IES branch be transferred to the Department of Public Service and Administration (PSA). The failures of the Department should not impair that restructuring. The intention should always be to achieve maximum outputs, but at the same time, the Committee could not cover the failure at that specific point, which was the Department itself in filling vacancies. The issue of consequence management should be explained within a reasonable time. It could be included in the report or in a special report submitted, so the formulation was agreed upon.

The Chairperson said that, basically, the recommendation was that the Committee should invite the Department to come and take it through its consequence management processes. The issue was the timeframe. Whoever seconded Mr Nontsele’s proposal should also include a timeframe. When should they come? When should the Committee invite them?

Mr Mdabe said in supporting the proposal, the timeframe should be in the Department’s fourth quarter presentation to the Committee. That report should include the report the Committee spoke about for the third quarter discrepancies or non-performance, based on the recommendations that it put forward.

The Chairperson said a new 6.1.4. would be drafted. She asked if they should use the word “plans,” or “what they have done,” to address consequence management. In her view, “plans” would come across as though the Department would address the issue only at that time. The concern was that the Committee always had reports and was always concerned about consequence management plans which were not being implemented. In her view, if it said “plans,” it would not be told what the Department had done. She would be guided by the Committee, so everyone was on the same page.

Mr Nontsele agreed -- the formulation changed the whole thing. The Committee wanted the DEL to present steps it had taken to deal with issues of failure in implementing consequence management in its next report. This report would also reflect the failures in filling vacancies in the third quarter. It was not referring to the future, but to the past. The Committee did not have evidence, so it could not ask for plans. If it wanted to include plans, it could say, “and plans into the future on how it would ensure there was no repetition.” As it stood, the sentence changed what was being said. It said “concrete steps were presented to the Committee in the next QPR4 of DEL on consequence management,” which was not what the Committee was talking about. It said that the DEL should present the concrete steps it had taken to deal with failures observed in the third quarter -- the failure to fill vacancies. It could then go further to state its future plans to avoid the repetition of that failure. It should present a report.

Ms Mkhonto asked if they could go back to 6.1.1, where it stated “the vacant funded posts that cannot be filled by other branches of the DEL be transferred to the IES branch.” She asked if it was not suggesting to the Department what to do. If it failed, the DEL would return to the Portfolio Committee and say the strategy it had given did not work. Were they not putting themselves in a trap by clearly suggesting what should be done? The Department could return and say what the Committee had suggested could not be implemented. Could this sentence be general and not specific on exactly what should be done? The Committee wanted these vacant funded posts to be filled.

The Chairperson said it was the Department’s responsibility to come and say what challenges it experienced when implementing certain recommendations. She did not think it was dictating to them. It was conducting oversight. It stated what it had observed and how it felt some things should be addressed. It was the Department’s responsibility to return to the Committee and say what challenges they experienced with certain recommendations, and the best way to implement them. She did not think it was dictating -- it was what the Committee had observed from 2019 to date, and was the recommendation it was making. If it became general, they would continue having these challenges of non-performance and the non-filling of posts by the DEL. Within that context, the Committee could also consider inviting the directorate of the HR department to come and explain why it was not leading by example in filling vacancies.

Mr Nonsteli said the difficulty arose from Ms Mkhonto’s points on 6.1.1. was that immediately after the failure had been spoken about, the Committee had agreed to sidestep the problem by transferring it to the IES. This was fine, because the IES was a critical branch that needed to be further supplemented, given that the Committee had looked into the enforcement problems in its oversight visit, specifically concerning the national minimum wage. The formulation was fine, provided that it said in 6.1.4 - what it wanted the Department to present concerning progress. It could not just be the failure to address consequence management on the non-filling of vacant funded posts. This would give more strength and meaning to the Committee in supporting 6.1.1. because it would not have deferred the failure, which would give clarity on the areas of concern Ms Mkhonto raised. The observation was that the sentence in 6.1.4. was not firm enough to avoid opening the Committee up to the risks to which Ms Mkhonto had referred. There was a relationship between 6.1.1. and 6.1.4.

Ms A Zuma (ANC) supported the Chairperson in inviting the Department, especially the units in the Department so they could come and give the Committee clarity on what was going on. It kept asking questions but did not have the answers. She supported the Chairperson in inviting the Department to address the Committee on these issues.

Mr Mdabe thought the issue raised by Ms Mkhonto on 6.1.1. on restructuring had been raised by Mr Nontsele in the observations -- that the Committee seemed to be clouding matters of restructuring with the budget. 6.1.1. spoke to the issue of moving the budget of the branches that had not yet filled those positions into the IES budget so it could have sufficient funds to fill those vacancies. Taking vacant posts from one branch to another spoke to the issue of restructuring those entities. He thought this was where the concern mainly was in the current formulation of 6.1.1.

Mr M Bagraim (DA) said the Committee seemed to worry about all the little things, like filling vacancies. It was not looking at the big picture. South Africa had the highest unemployment rate in the world. Every quarter it got worse and the name of the Department had been changed to make it conducive for employment, but the Committee had not made any recommendations on this. It kept talking about South Africa’s unemployment, and nobody did anything about it.

The Chairperson noted the comment. She thought when it tabled the report, Members should feel free to raise that. It could not be that the issue of vacancies was minute -- it was one of the very important areas in the Department. When it was in a debate, it would raise the issues concerning it. She suggested that the Committee leave 6.1.1. as it was. It would engage in its debate and raise issues of serious concern, like those that affected the budget and the restructuring of the Department itself and its entities. It was in that context that she had said the DEL would have to come and respond to the Committee on what it was doing in the fourth quarter. It was not talking about vacant unfunded posts, but about vacant funded posts and what was causing the Department to not reach its targets. It had vacant funded posts. It was quite a challenge that the Committee had to address.

The Members agreed on the new 6.1.4.

The Chairperson moved to 6.2 on the Commission for Conciliation Mediation and Arbitration and 6.3 on Productivity SA.

Mr Bagraim said the Committee was looking at the small things again, when it knew it had the second-lowest productivity in the world. The Department should go back to the drawing board to determine how it would try to help improve productivity in South Africa.

The Chairperson noted the comment. She moved on to 6.4 on NEDLAC.

Mr Bagraim said when NEDLAC came to an agreement with the social partners, there should be more uptake from the DEL, as it did not seem to follow the recommendations of NEDLAC.

The Chairperson noted the comment and moved to 6.5 on the Unemployment Insurance Fund (UIF).

Mr Bagraim said the Department had failed the employees of South Africa as it had not even bothered to put in a proper effort to ensure the UIF had a proper audit.

The Chairperson noted this and moved to 6.6 on the Compensation Fund.

Mr Bagraim said the public had been badly treated, and somehow the Compensation Fund never improved. It should ask the Department to improve its performance.

Ms Mkhonto said she was a bit lost. She asked if the Committee was not dealing now with the recommendations from its observations. She was lost on what Mr Bagraim was busy with now -- whether it was the observations or the recommendations -- because they had to follow him as Members.

The Chairperson said he was making comments. When the Committee presented the third quarter report, it would do that as an organisation that was commenting on the issues it was not comfortable with. It would be a bit problematic if they were followed on a platform that would be provided when it debated or put forth declarations.

Ms Mkhonto said Mr Bagraim was raising very important facts for the progress of the Department. If he could put them forward as recommendations, it would help the Committee, because now she did not know if he was recommending or observing.

Mr Bagraim said he was putting it in the recommendations.

The Chairperson asked Mr Bagraim not to create confusion. There was a difference between a recommendation and an observation. He could not change in the middle and say he was making recommendations when he had said they were observations. Knowing that, he should begin with an observation and then come up with a recommendation.

Mr Nonsteli was concerned, as the Chairperson had pointed out, that when Members made recommendations or observations, they went to the point and stated how they should be captured -- in observations and recommendations. The problem was that Mr Bagraim had not said how his observations should be captured, and their relationship to the recommendations.

Mr Bagraim said he was happy to unpack his comments if the Chairperson was willing to consider them. He started with 6.5, where he recommended the UIF be dissolved and the function be reverted to the Department until there was a proper capacity within the UIF to service the people of South Africa. This applied particularly to the dismissed workers, pregnant -- or anybody who needed to make a claim.

The Chairperson asked for any comments before she spoke.

Ms Mkhonto said that when there were discussions in a meeting, they did not compel other Members to accept what was being said. The statement made by Mr Bagraim was not in good faith. She asked that they leave the matter and continue with the meeting. She could not be compelled to accept or not accept other Members’ ideas, just as she also did not compel other people to accept her ideas.

The Chairperson reserved her comment on the matter raised, and said she would reflect them on an appropriate platform, because she did not think it was fair to anyone, and to her specifically as the Chairperson, to return to the same issue. If Members wanted to address these issues on an appropriate platform, they were free to do so. She did not want to repeat what Ms Mkhonto had said. The Committee would deal with some issues, but she did not want to go backwards and forwards. As the Chairperson, she was responsible for protecting other Members on some of the statements being made.

It was now towards the end of the report. The Chairperson asked for any further comments and a formal mover of the report.

Mr Nontsele asked if the Committee could first agree on the proposal put forth by Mr Bagraim. It could sound like the statements were not made in good faith, but he did not want to reopen a negative debate. He did not support his proposal, but perhaps Mr Bagraim could make it in another discussion.

Secondly, in the observations, the Committee had inserted a footnote that was a catch-all formulation -- “the Committee noted with concern the issue of non-filling of vacancies in the entire DEL portfolio and its entities.” He asked if that formulation was not going to be proposed and finalised, and then the Committee would conclude its recommendations. He asked what the Committee was saying, or if it would be left as a point of observation that was not qualified in its recommendations. He suggested the Committee should at least make it a formal point.

The Chairperson asked for any comments on that before she spoke. Within that context, she recommended that the Committee call the Department and its HR directorate to come within 30 days and take it through all the challenges that affected the DEL and its entities. When she spoke about the Department, she was also referring to the provinces. In the presentation, it was stated that the majority of vacancies were in the provinces, but the DEL's HR department should come and give a concrete report on why it could not fill posts. That would be the recommendation. Members were free to amend, reject or support.

Ms Mkhonto agreed with her sentiments of having a presentation, but was a little sceptical about having a unit presenting. She asked how it could skip the accounting executive, and ask the lower levels of the Department to account for these issues. She agreed with the Committee getting a report, but was not sure exactly what was being suggested. Who exactly must come and account to the Committee, because she thought the Director-General should come and account for this?

The Chairperson said the executive authority and the accounting officer were to account. They would be invited within 30 days to present to the Committee.

Mr Nontsele was also concerned about this progress report. It said that the DEL should present a “report”, not a “progress report,” within 30 days. The footnote now read, “the executive authority and accounting officer of the DEL must present before the end of the fourth term a report on HR issues relating to the non-filling of funded vacancies.”

The Chairperson said this was clear and simple, and should be in bold type as it was a very serious matter. She asked for a formal mover with those additions, amendments and subtractions.

Mr Nontsele formally moved for the report to be adopted with the amendments.

Ms Zuma formally seconded the draft report.

Ms Mkhonto asked the Chairperson to note the objection of the EFF.

Mr Bagraim also asked for the objection of the DA to be noted.

The Chairperson noted the objections, and asked the Committee to move to the second item on the agenda.

Adoption of Fourth Term Committee Programme

On Wednesday, 9 November, the Committee would be briefed by the DEL on the matter that had been sent to the Office of the Chairperson of the Committee section. The Office of the Chairperson had taken it to the Department to look at so it could follow due processes on a matter that was then being referred to the Committee by a member of the public. Those who wanted to introduce amendments ranged from the Department to the Cabinet, the Committee, and a member of the public. It then had to follow due process. Before that, the Committee would have to get a briefing from the Department and then consult and follow the necessary processes, because a member of the public could not go to the House and make a presentation. There were processes to address that. It was a matter that was still being discussed, and she was not sure why the Committee section had put it in this programme.

Members would recall that a gentleman came and gave a presentation on elderly care leave, which the Office of the Chairperson circulated to the chairpersons of the Portfolio Committees on Public Service and Administration and Social Development. It was still waiting, because it had a joint study group. Both those committees should also have a chance of being addressed by that person. It was putting it on the agenda for 16 November, but would make a follow-up so that it would give them a chance to give that person an audience.

On 23 and 30 November, the Committee would be adopting its minutes. It would insert this there, because it had agreed in its recommendations that before it ended the term, it would invite the DEL, the executive authority and the accounting officer to present why there was a failure to fill funded posts. That would be the meeting on 30 November. That was the programme from now until the end of the term. She asked for a formal mover.

Mr Bagraim said on 9 November, it would consider the Fair Remuneration Draft Bill, and it would be useful for the Committee to receive a copy to study before the meeting. He presumed the Department had put something together.

Mr Nontsele formally moved the adoption of the programme.

Ms Mkhonto seconded the adoption of the programme.

The meeting was adjourned.