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Public Service Amendment BillPublic Service Amendment Bill

presentation toPortfolio Committee on Public Service and

Administration, National Assembly18 October 2006

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CONTENTCONTENT

Purpose of Amendment BillWhy Amendment Bill and not

new BillMaterial amendments in Bill

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PURPOSE OF PURPOSE OF AMENDMENT BILL (1)AMENDMENT BILL (1)

Main purpose to address organisational & human resource areas that directly/indirectly hamper service delivery. These areas include- Inadequate provision for deployment of staff Some functions provided via-

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

entities outside public service without direct control by political head Public Service Act prescripts often not adhered to, resulting in

weak organisational and/or HR practices & legal disputes Employees dismissed for misconduct, even related to

corruption, may be re-employed Certain provisions have given rise to legal disputes, while others

are obsolete or conflict with other legislation

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PURPOSE OFPURPOSE OFAMENDMENT BILL (2)AMENDMENT BILL (2)

To address mentioned areas: Staff mobility arrangements are improved Government agencies as new institutional form

introduced within public service to enable direct service delivery through focused, ring-fenced separate entity under control of political head

Compliance enhanced through investigative powers & compulsory disciplining & reporting

Enabling provision for prohibiting re-employment of persons dismissed for corrupt-related and other misconduct introduced

Ambiguities/conflicts/obsolete provisions removed

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WHY AMENDMENT BILLWHY AMENDMENT BILLAND NOT NEW BILL (1)AND NOT NEW BILL (1)

Given extent of amendments – question arises, why an Amendment Bill and not a new Bill

Principal reason is that work is underway to submit a draft Bill for Single Public Service – to Cabinet at end of 2006 – to obtain approval to publish for public comment Thus, not desirable to introduce a new Bill in existing format at

this stage Substantial policy shifts to be considered & proposed

during development of Single Public Service Bill Likely date of commencement of Single Public Service

Act is 2009, so an Amendment Bill is required

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WHY AMENDMENT BILLWHY AMENDMENT BILLAND NOT NEW BILL (2)AND NOT NEW BILL (2)

Certain amendments, already mentioned earlier, regarded as urgent, e.g. Improvement of staff mobility arrangements Introduction of government agency as new service

delivery model Measures to obtain better compliance with the Act Prohibition on re-employment of public servants

dismissed for certain kinds of misconduct Adequate provision for delegation of powers

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MATERIAL AMENDMENTSMATERIAL AMENDMENTSIN BILL (1)IN BILL (1)

Various definitions clarified & “employment practice” defined; “executing authority” replaced with “executive authority”

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

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MATERIAL AMENDMENTSMATERIAL AMENDMENTSIN BILL (2)IN BILL (2)

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

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

Commission is notified of investigations & their outcome (cl 7)

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MATERIAL AMENDMENTSMATERIAL AMENDMENTSIN BILL (3)IN BILL (3)

New organisational form, government agencies, in place of current Schedule 3 organisational components, proposed (cls 9 & 10) As supplementary organisational form within public service -

enable direct service delivery via focused, full ring-fenced entity, under direct control of executive authority, e.g. a Minister or MEC

Based on proposals by National Treasury & dpsa following a review of public entities

Accountability & responsibility vested in functionaries directly involved in performance of functions Head of agency to report directly to relevant executive

authority & head to be accounting officer of agency

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MATERIAL AMENDMENTSMATERIAL AMENDMENTSIN BILL (4)IN BILL (4)

Government agency … (cls 9 & 10) President may, on executive authority’s request and

advice of Minister of Finance & MPSA, establish agency

Agency may have original/assigned/delegated statutory functions

Each agency to be partnered with principal department Principal department to assist executive authority

with oversight of agency on policy implementation, performance, integrated planning, budgeting & service delivery

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MATERIAL AMENDMENTSMATERIAL AMENDMENTSIN BILL (5)IN BILL (5)

Advantages of using government agency model Administrative & operational arrangements to be customised to suit

specific service delivery environment Improved governance via direct accountability & decision-making as

close as possible to point of service delivery Direct control & influence by executive authority over service delivery

outcomes without need to create entities outside public service (e.g. public entities)

Institutional mechanism to reincorporate some public entities into public service, if required

Establishment of advisory board for agency to advise executive authority on service delivery matters & to accommodate stakeholder interests (cls 9 & 10)

Current Schedule 3 organisational components (Independent Complaints Directorate, Intelligence Academy & Inspectorate for Social Assistance) moved to Schedule 1 – apart from different designations, currently no difference between Schedules 1 & 3 bodies (cl 38)

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MATERIAL AMENDMENTSMATERIAL AMENDMENTSIN BILL (6)IN BILL (6)

References in Public Service Act to promotion omitted to accord with open competition principle & to limit unfair labour practice disputes in this regard (e.g. cl 14)

President enabled to also deploy in consultation with Premiers in question national head to province provincial head to another province or to national department[Content of section 3B moved to section 12 - cls 5 & 17]

Transfer & secondments of staff within public service- Clarified provisions Enable transfers and secondments without employee’s consent

but subject to due process and public interest requirements Express provision for continued employment despite transfer

within public service (cls 20, 21 & 22)

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MATERIAL AMENDMENTSMATERIAL AMENDMENTSIN BILL (7)IN BILL (7)

Transfers to public service Continued employment if transferred from

other organ of state to public service (cl 22) Secondments to & from public service

Provisions simplified Enables secondments from public service

without employee’s consent but subject to due process and public interest requirements (cl 22)

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MATERIAL AMENDMENTSMATERIAL AMENDMENTSIN BILL (8)IN BILL (8)

In addition to investigative power for MPSA mentioned earlier, propose new measures to enhance compliance with Public Service Act Compel-

executive authorities to discipline transgressing heads of department

heads of department to discipline transgressing employees in their departments

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

(cl 24)

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MATERIAL AMENDMENTSMATERIAL AMENDMENTSIN BILL (9)IN BILL (9)

Address current anomaly of head of department vested with power to dismiss employee for misconduct while chair of disciplinary hearing pronounces sanction ito disciplinary code Since disciplinary hearing aims to ensure due process - propose that

sanction imposed by chair of hearing must, subject to internal appeal (if any) be implemented by head of department (cls 24 & 25)

Provision made for institution/continuation of disciplinary hearing by new department iro alleged misconduct by employee at his/her former department (cl 24)

Grounds for dismissal aligned with those recognised under Labour Relations Act, i.e. misconduct, incapacity due to poor performance or ill health & operational requirements (new section 17(2) in cl 25)

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MATERIAL AMENDMENTSMATERIAL AMENDMENTSIN BILL (10)IN BILL (10)

Abscondment provisions revised Period of absence reduced from one calendar month to 10 days Deemed resignation to exclude applicability of disciplinary

procedures However, provision for re-instatement retained (new section

17(3) in cl 25) Similar provision for employee unable to perform ito

contract for reasons other than poor performance/ill health supervening impossibility such as long period of imprisonment

(new section 17(5) in cl 25) Prohibition on re-employment in public service for

prescribed period of employee dismissed for misconduct, including conduct of corrupt nature (new section 17(4) in cl 25)

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MATERIAL AMENDMENTSMATERIAL AMENDMENTSIN BILL (11)IN BILL (11)

Provisions regarding performance of outside remunerative work by employees clarified Consider effect on functions & possible conflict of interest (cl 26)

Provision is made for- heads of department to submit grievances directly to Public Service

Commission employees to first exhaust grievance procedure within department

before referring labour disputes to bargaining council (cl 31) 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)

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MATERIAL AMENDMENTSMATERIAL AMENDMENTSIN BILL (12)IN BILL (12)

Regulation-making powers aligned with areas that norms & standards may be determined & also simplified (cl 35)

Currently, Public Service Act only expressly authorises executive authority to delegate certain functions Comprehensive provision for delegation of all

functions vested by Act or regulations in- executive authority head of department (cl 37)

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

Contact persons:Adv Ailwei Mulaudzi, tel 012-336 1106, Ailwei@dpsa.gov.za

Adv Empie van Schoor tel 012-336 1106, Empie@dpsa.gov.za