Public Service Amendment Bill: workshop

PUBLIC SERVICE AND ADMINISTRATION PORTFOLIO COMMITTEE
14 November 2006
PUBLIC SERVICE AMENDMENT BILL: WORKSHOP

(Acting) Chairperson: Mr MR Baloyi (ANC)

Documents handed out:
Presentation on Public Service Amendment Bill
Presentation on Government Agency
Presentation on Government Agency provisions in Public Service Amendment Bill
Public Service Amendment Bill [B31-2006]
Public Service Act of 1994 with proposed amendments
Public Service Act

SUMMARY
The workshop was made up of a series of presentations by a delegation from the Department of Public Service and Administration (DPSA) on the Public Service Amendment Bill. The Bill aimed to address the various defects in the Public Service Act that could not be put off until the introduction of the more far-reaching public service legislation expected in 2009. Its objectives could be broadly classified in terms of organisational and human resource matters within the public service. The delegation also explained governmental agencies as a new and alternative institutional form within the public service.

MINUTES
The Chairperson welcomed the Director-General and his delegation and stated that the Select Committee of the NCOP would not be joining the committee that day.

Prof R Levin (DPSA Director-General) was joined by Adv E van Schoor (DPSA Legal Sevices), Adv A Mulaudzi (DPSA Legal Services), Ms Lynette Sing (DPSA) and Mr E Geldenbloom (DPSA).

Objectives of the Public Service Amendment Bill
Prof Richard Levin noted that the proposed amendments were aimed only at strengthening the organisation and human resource management of the service. The department was also working on legislation to create a single public service, which would be introduced to Parliament towards the end of next year. The department felt that given this legislation would only commence sometime in 2009, it should deal with some urgent issues at this present time. Key issues were accountability, compliance and service delivery, which the department believed were not adequately addressed within the Public Service Act.

Specific areas that were to be addressed included:
▪ The improvement of staff mobility arrangements
▪ The introduction of government agencies as a new institutional form within the public service to enable direct service delivery though a focused, ring-fenced separate entity under the control of a political head.
▪ Compliance was to be advanced through investigative powers and compulsory disciplining and reporting.
▪ Enabling the institution of disciplinary steps in a staff member’s former department.
▪ Enabling provision for prohibiting re-employment of persons dismissed for corruption and other misconduct.
▪ Any ambiguities, conflicts and obsolete provisions in the Act are to be removed.

If the Bill became law, it would, together with required new regulations, improve the efficiency of the organisational and human resource framework by:

▪ Introducing a new service delivery model.
▪ Introducing enforcement mechanisms.
▪ Simplifying and clarifying the Public Service Act.

These measures were designed to enhance governance, accountability and compliance, which in turn would lead to improved service delivery.

Substantive amendments to the Act
Adv Empie van Schoor (Chief Director: Legal Services) and Adv Ailwei Mulaudzi (Director: Legal Services) delivered this part of the presentation. They explained that:
▪ Various definitions were to be clarified and ‘employment practice’ would now be defined.
▪ ‘Executing authority’ would also be replaced with ‘executive authority’.
▪ The Minister of Public Service and Administration would be enabled to apply, after consultation with the other Ministers in question, any condition of service to educators, members of South African Police Services (SAPS), or employees of the Department of Correctional Services.
▪ Various norms and standards were to be set and other functions of the Minister clarified.
▪ Collective agreements concluded in respect of employees falling under the Public Service Act were to be regarded as Ministerial determinations to facilitate implementation and compliance.
▪ Compliance with the Act was to be improved and the Minister was to be empowered to conduct investigations and make binding decisions in the event of contraventions.
▪ To avoid duplications, the Public Service Commission would be notified of these investigations and their outcome.
▪ The new organisational form of governmental agencies was proposed in place of the current Schedule 3 organisational components.
▪ References in the Act to ‘promotion’ would be omitted in accordance with the principle of open competition and in order to limit unfair labour practice disputes in this regard.
▪ The President would be enabled to deploy, in consultation with the relevant premiers, the national head to a province; or a provincial head to another province or to the national department.
▪ The transfer and secondments of staff within and from the public service would be clarified and simplified. There would also be express provision for continued employment despite transfer within the public service or to the public service from another organ of state.
▪ In addition to the proposed investigative power for the Minister, there would be new measures to enhance compliance with the Public Service Act. These include being able to compel executive authorities to discipline transgressing heads of department, and heads of department to discipline transgressing employees in their departments.
▪ These transgressions must be reported to the Minister who is to report at least annually to the relevant committees of the national and provincial legislatures.
▪ The head of a department should have his power to dismiss an employee for misconduct transmuted into a power to implement a sanction imposed by the chair of a disciplinary hearing.
▪ Provision has also been made for the institution or continuation of a disciplinary hearing by a new department in respect of alleged misconduct by an employee at his former department.
▪ The grounds of dismissal would now be aligned with those in the Labour Relations Act.
▪ The abscondment provisions would be revised, with the period of absence deemed as such being reduced from one calendar month to ten working days.
▪ There would be a prohibition on the re-employment in the public service for a prescribed period of an employee dismissed for misconduct.
▪ The provisions regarding the outside remunerative work by employees would be clarified, with consideration taken of its effect on their functions and a possible conflict of interest.
▪ Provision would be made for heads of department to submit grievances directly to the Public Service Commission and for employees to first exhaust the grievance procedure within the department before referring labour disputes to the bargaining council.
▪ While the current Public Service Act only expressly authorises executive authority to delegate certain functions, comprehensive provision for delegation of all functions vested in the executive authority or head of department would now be made.

Government agency provisions in the Bill
Ms Lynette Singh, Chief Director: Macro Organisation of the State (MOS), and Mr Etienne Geldenbloom (Director: Public Entities) presented. They noted that government agencies were located in and were part of the "public service".

▪ The Public Service Act and all its prescripts, except where otherwise provided, would apply to the organisation and governance of agencies, as well as its staff.
▪ A government agency is a body created in terms of the Act.
▪ Government agencies are to be listed in Schedule 3 together with their principal department.
▪ Current Schedule 3 organisational components are to be moved to Schedule 1.

Dealing with the creation of government agencies, the President may:
▪ On the request of a national Minister and on the advice of the Minister of Finance and the Minister of Public Service and Administration, establish a national government agency. Or,
▪ On the request of a provincial Premier, after consultation with the Minister of Finance and the Minister of Public Service and Administration, establish a provincial government agency.

Dealing with the functions of government agencies:
▪ An agency may have original, assigned or delegated statutory functions.
Since Parliament conferred particular functions on a functionary, it is proposed in the Bill that a Minister may only assign such functions to the head of a government agency with Parliament’s approval. Such assignment must be done by notice in the Government Gazette.

Dealing with arrangements particular to government agencies, for each agency, a notice in the Gazette:
▪ Must list the relevant functions of its head.
▪ Must refer to notices on assigned functions.
▪ May list delegated functions.
▪ Must determine reporting requirements to the head of the principal department to enable the head to assist the executive authority with oversight on policy implementation, performance, integrated planning, budgeting and service delivery.
▪ May include any administrative or operational matter.
▪ May establish an advisory or consultative board without executive functions for agency.

Dealing with the main differences between departments and government agencies:
▪ A government agency would be a body established to perform specific statutory functions.
▪ Unlike departments, an agency would not have any core policy development function.
▪ Unlike most departments, a government agency may have assigned functions with accompanying direct accountability.
▪ A government agency is to be partnered with a department, which must assist the executive authority with oversight in respect of policy implementation.
▪ Contrary to a department, a government agency may have an advisory or a consultative board.

(At this point, Mr K Khumalo (ANC) observed that the government agency was a new concept to South Africa. He asked whether the Department had done any comparative studies of other countries’ public service. Mr Geldenbloom replied that the Department had made use of several other models, particularly that of the Netherlands.)

Clause by clause reading of Public Service Act (with the proposed amendments)
Adv van Schoor read through the proposed amendments clause by clause. Text with a strike through constituted those provisions which were proposed to be omitted. Underlined text constituted those provisions which were new insertions/amendments.

She got through the long title and the definitions (section 1) before the Chairperson indicated that she could continue when the workshop resumed on the following day.

Before he adjourned the workshop, the Chairperson asked the Director General if the Department could produce a narrative version of what government agencies were, to help the Committee to understand them.

Prof Levin agreed that it would be necessary to elaborate further on government agencies, and especially on their usefulness to execute particular services.

Meeting adjorned.