G Fraser-Moleketi: Public Service Amendment Bill

10 November 2006

Madam Speaker

This Bill provides an opportunity for Parliament to strengthen the
organisational and human resource matters in the Public Service. Honourable
members will be aware that we have drafted more far-reaching legislation to
create a Single Public Service of all three spheres of government, which will
be tabled in Parliament towards the end of next year. However, for various
reasons it is necessary to step in with some urgency to strengthen the Public
Service Act while we undertake the necessary consultation processes on the more
far-reaching Bill.

The changes required are based on 12 years experience which has shown us
that the arrangement of some organisational and human resource matters in the
current Public Service Act directly or indirectly impedes the delivery of
services to citizens by national and provincial departments. These matters
include the following:

* inadequate provision for the deployment of staff where they are most
needed
* some government functions are provided through national or provincial
departments and not close to the point of service delivery and without direct
accountability and decision-making by the functionaries tasked with such
delivery. On the other hand some government functions are provided via entities
outside the public service without direct control and influence by its
political head
* the Public Service Act and its prescripts are frequently not complied with,
which results in weak organisational and human resource practices as well as
legal disputes
* employees dismissed from departments for any kind of misconduct, including
misconduct involving corrupt acts, are often re-appointed soon after dismissal.
Employees suspected of transgressions sometimes resign and are appointed in
other departments without disciplinary steps being instituted or continued for
those transgressions
* some provisions in the Act have resulted in legal disputes, while others are
obsolete, overly complex or conflict with other legislation.

The primary aim of the Bill is therefore to improve the organisational and
human resource framework for the public service to address the mentioned
obstacles to service delivery. For this purpose, the key objectives of the Bill
are to:

* improve staff mobility arrangements for the public service through
allowing for deploying staff where they are most needed, but with due
consideration of the circumstances of affected employees
* introduce government agencies as a new institutional form to be accommodated
within the public service to enable direct service delivery through a focussed,
ring-fenced separate entity under the direct control of a Minister, Premier or
MEC
* enhance compliance with the Act through investigations and compulsory
discipline of transgressors and reporting thereon
* enable the institution of disciplinary steps against employees for alleged
transgressions at their former departments
* introduce anti-corruption measures to prohibit the re-employment of persons
in the public service dismissed for specified kinds of misconduct such as
misconduct involving corrupt acts. It is proposed that the prohibition on
re-employment be for a stipulated period, and to allow that different periods
may be determined for different kinds of misconduct
* address a number of legal difficulties arising from the day-to-day
application of the Act as well as arbitrations and court cases
* simplify the Act through streamlining several provisions, removing obsolete
provisions and aligning the Act with other legislation in order to facilitate
its application.

Better staff mobility is proposed by clarifying the transfer and secondment
provisions. Transfers and secondments can take place with the affected
employees' consent. Provision is also made for transfers and secondments in the
absence of such consent. This however requires prior consultation with affected
employees and its aim must be to enhance service delivery or be otherwise in
the public interest. The continued employment of transferred employees, viz. no
break in service, for purposes of pension and other benefits is also included
in the Bill.

A government agency as a new organisational form is proposed to function as
a separate institution in the public service with its head as the accounting
officer in terms of the Public Finance Management Act. This model is based on
the public entity proposals by the National Treasury and the Department of
Public Service and Administration. This government agency model could be
introduced separately from other proposals regarding public entities. The
agency model is suitable for an institution, with a unique identity that has
specific measurable functions that can be logically grouped in terms of a
particular service delivery model, for example a large public hospital. Such an
agency may have original statutory functions or assigned or delegated statutory
functions or a combination of these. The assignment of statutory functions of
the executive authority to the head of an agency, with accompanying shifting of
accountability, is proposed to be subject to Parliament's approval.

To improve compliance with the provisions of the Act, the Minister is
enabled to conduct investigations and, if an investigation confirms
non-compliance, the Minister can take remedial steps, including binding
decisions.

Provision is made in the Bill for enhancing greater alignment and
co-ordination, only where desirable, between the conditions of service of the
general public service falling under the Public Service Act, and certain
sectors which although part of the public service have their own employment
legislation.

To assist with the enforcement of the provisions of the Public Service Act,
executive authorities are compelled to take disciplinary steps against
transgressing heads of department, and heads of department to take such steps
against transgressing employees. They are also required to report
transgressions to the Minister for the Public Service and Administration and
the Director-General of the Department of Public Service and Administration,
respectively. The Minister for the Public Service and Administration may also
report transgressing national executive authorities to the Cabinet and
transgressing provincial executive authorities, through the relevant Premier,
to the provincial Cabinet in question. That Minister must also annually report
transgressions to the relevant committees of Parliament and of the provincial
legislatures concerned.

The Bill also aims to remove current legal difficulties with the Head of
Department (HoD) being vested by the Public Service Act with the power to
dismiss an employee on the ground of misconduct, while the chairperson of the
disciplinary hearing pronounces the sanction in terms of the relevant
collective agreement for non-Senior Management Service (SMS) employees and the
relevant ministerial determination for SMS members. It is proposed that all
sanctions pronounced by the chair must, subject to exhaustion of any available
internal appeal processes, be implemented by the head of department.

The abscondment provision for employees was revised to shorten the period of
absence to ten days since the current calendar month is unduly long, especially
if compared to employment practices in other public institutions as well as the
private sector.

Employees' candidature for election to the National Assembly or provincial
legislature or municipal council and their appointment as permanent delegates
to the National Council of Provinces (NCOP) are proposed to be regulated in
accordance with the Constitution.

A comprehensive delegation provision enabling the Minister, an Executive
Authority and a Head of Department, to delegate their powers or duties in terms
of the Public Service Act.

If the Bill is passed by Parliament and signed into law by the President, it
would together with the required new regulations, improve the efficiency of the
organisational and human resource framework for national and provincial
departments by introducing a new service delivery model and enforcement
mechanisms, as well as simplifying and clarifying the Public Service Act. These
measures are designed to enhance governance, accountability and compliance
which in turn would lead to improved service delivery to the people of South
Africa.

Thank you.

Issued by: Ministry for Public Service and Administration
10 November 2006