11 Public Service Amendment Bill [B ]

2 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

3 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

4 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

55 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

6 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

77 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)

8 PROMOTIONS IN PUBLIC SERVICE  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

99 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

10 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)

11 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

12 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

13 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

14 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

15 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

16 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

17 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

18 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

19 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)

20 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

21 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?

22 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)

23 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

24 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

25 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

26 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)

27 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)

28 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)

29 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

30 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)

31 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)

32 OUTSIDE REMUNERATIVE 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)

33 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)

34 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

35 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)

36 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)

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