Public Service Amendment Bill
[B31-2006]
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
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
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
4
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
 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
6
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
 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
8
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 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)
10
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
11
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
12
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
13
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
14
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
15
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
16
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
17
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)
18  E.g. to retain pensionable service & leave credits
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
 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
20
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?
21
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 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
23
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
24
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
25
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)
26
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)
27
GROUNDS OF DISMISSAL
 Grounds for dismissal aligned with those
recognised under Labour Relations Act,
i.e.




28
Misconduct
incapacity due to poor performance
ill health
operational requirements
(new section 17(2) in cl 25)
ABSCONDMENT
 Abscondment provisions revised (new section 17(3) in cl
25)
29
 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. reinstatement procedure). Objectives are reasonable &
justifiable
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)
30
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
 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)
32
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
 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
34
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
 Currently, Public Service Act only expressly
authorises executive authority to delegate
certain functions
36
 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
37