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PUBLIC SERVICE COMMISSION PRESENTED BY : OR RAMSINGH DIRECTOR-GENERAL DATE: 16 May 2007

PRESENTATION ON THE PUBLIC SERVICE AMENDMENT BILL TO THE PORTFOLIO COMMITTEE ON PUBLIC SERVICE AND ADMINISTRATION. PUBLIC SERVICE COMMISSION PRESENTED BY : OR RAMSINGH DIRECTOR-GENERAL DATE: 16 May 2007. INTRODUCTION.

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PUBLIC SERVICE COMMISSION PRESENTED BY : OR RAMSINGH DIRECTOR-GENERAL DATE: 16 May 2007

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  1. PRESENTATION ON THE PUBLIC SERVICE AMENDMENT BILL TO THE PORTFOLIO COMMITTEE ON PUBLIC SERVICE AND ADMINISTRATION PUBLIC SERVICE COMMISSION PRESENTED BY : OR RAMSINGH DIRECTOR-GENERAL DATE: 16 May 2007

  2. INTRODUCTION • The draft Public Service Amendment Bill was submitted to all national executing authorities for comment by the MPSA for Public Service and Administration (MPSA) on 23 May 2006. • The Public Service Commission (PSC) commented to the DPSA on the Bill on 09 June 2006. • The PSC submitted further input on the Bill to the Portfolio Committee on Public Service and Administration on 13 December 2006. • Subsequent to the above, bilaterals have taken place between the OPSC and the DPSA on the Bill.

  3. AREAS OF CONCERN RAISED BY PSC IN ITS INPUT TO THE PORTFOLIO COMMITTEE • The PSC’s letter of 13 December 2006 comprehensively outlined its concerns. • The concerns were as follows: • Functions of the MPSA – power to conduct investigations in terms of section 5(8) of the Bill • Possible erosion and duplication of PSC’s powers to investigate • Enforceability of recommendations • Impeding on the powers of executing authorities • Strengthening compliance • Consultative or advisory bodies • Government Agencies • Discipline • Grievances • Timing of the Bill

  4. FUNCTIONS OF THE MPSA – POWER TO CONDUCT INVESTIGATIONS • Possible erosion and duplication of PSC’s powers to investigate. • The Bill, in section 5(8), gives the MPSA similar investigative powers to investigate compliance as those assigned to the PSC through the Constitution. This may be unconstitutional as it could erode the PSC’s mandate. • Enforceability of recommendations • The belief is that section 5(8)(c) of the Bill will strengthen the PSC’s role and ensure enforceability of the PSC’s decisions. The Bill confers powers on the MPSA to make enforceable decisions emanating from investigations conducted by the MPSA. It is unclear how the Bill will ensure that the PSC’s recommendations are enforced. • If the proposed inclusion of investigative powers for the MPSA in the Bill is not unconstitutional, and if the intention is to strengthen the PSC’s role, would it not be more appropriate to make provision for enforcement of the PSC’s recommendations in the Bill or in the PSC Act, 1997?

  5. CONSULTATIVE OR ADVISORY BODIES • Section 3(3)(a) of the Bill provides for the establishment of consultative or advisory bodies by the MPSA. • The extent to which advisory bodies will interfere with the advisory role of Heads of Department and their senior managers is not clear. • It is not clear to what extent the MPSA will be able to act on advice given to her in relation to the functions of other departments and how this interfaces with the executive powers of her colleagues. • The advisory bodies to be established for government agencies raises questions about the impact that this will have on the role the heads of such agencies and Heads of Department must play in advising the Executive. • This may create problems in providing role clarity at the Executive interface.

  6. GOVERNMENT AGENCIES • The Bill provides for the establishment of Government Agencies as a new service delivery model. • These agencies will be a supplementary organisational form within the Public Service, envisaged to enable direct service delivery via focused, full ring-fenced entities. • These agencies will be under the direct control of an EA. A head of an agency will report directly to the relevant EA and will be the accounting officer of the agency. • The rationale behind the ring-fencing of agencies outside departments, and the possible replication of departments are a point of concern. The PSC believes that capacity should rather be created within departments to ensure that accountability remains within departments. • Clarity should be obtained whether agencies will be established for every category of service provided by Government.

  7. ADDITIONAL ISSUES RAISED • In dealing with Discipline, the practice of resigning prior to the disciplinary process is finalised was highlighted. This practice is inconsistent with Government’s commitment to root out corruption. It will have the effect that employees will have a “clean record”, and the alleged misconduct will therefore not be brought to the attention of future employers. • The additional subsection 4 to section 35, dealing with “Grievances of employees”, is ambiguous and does not provide for other dispute resolution mechanisms available to employees. For example, whilst the Constitution and the Grievance Rules provide for the PSC to investigate grievances of employees, no provision is made in this subsection that the aggrieved employee may approach the PSC.

  8. TIMING OF THE BILL • It was understood that the Public Service Act will be replaced by the Single Public Service Act, which was envisaged to become effective in 2008. • It is not clear why the Public Service Bill is introduced when within such a short period of time it will be overtaken by the Single Public Service Act. • The Review of State Institutions Supporting Constitutional Democracy (Chapter 9 Institutions) and the PSC established through Chapter 10 is also currently being undertaken. • The outcome of the review process, could result in amendments to legislation regarding the functions of some of the institutions. The report of the Ad Hoc Committee is scheduled for June 2007, whereas the DPSA representatives expect the Bill to be passed by May 2007. The Bill will therefore not have taken into account any proposals from the Review process.

  9. BILATERALS WITH THE DPSA • A series of bilaterals were held with the DPSA. • Apart from the bilaterals, the DPSA provided a written response to the PSC regarding its concerns in a letter dated 7 May 2007. • From the point of the original concerns there has been a noticeable endeavour to address the issues raised by the PSC. • In turn, the PSC provided a written response to the DPSA on 10 May 2007. • The PSC accepted that the suggested amendments by the DPSA dealt with fundamental differences the PSC had with the Bill.

  10. FUNCTIONS OF THE MPSA – POWER TO CONDUCT INVESTIGATIONS IN TERMS OF SECTION 5(8) OF THE BILL • The DPSA has suggested that the proposed section 5(8) of the Bill, which deals with the power of the Minister for the Public Service and Administration (MPSA) to conduct investigations be omitted. • The PSC fully supports this suggestion.

  11. CLAUSE WHICH OBLIGES EXECUTING AUTHORITIES TO GIVE EFFECT TO THE PSC’S RECOMMENDATIONS • The DPSA proposed the inclusion of a clause in the Bill which obliges EAs and heads of department to give effect to the PSC’s recommendations within a stipulated period. • The PSC, in principle, agrees with the inclusion of such a clause, subject to certification by the CSLA. • It was suggested that provision should be made for EAs or HoDs to request the PSC to review or amend a recommendation before the expiry of a stipulated period. • The PSC agrees with the principle that its recommendations should be subject to review. However, there is a need to look at the most appropriate review mechanism that will ensure the independence of the PSC. • The DPSA has drafted a clause, which it is currently consulting with the CSLA.

  12. CONSULTATIVE OR ADVISORY BODIES • It still remains unclear to the PSC as to why it is necessary to legislate advisory bodies when currently the Minister has the authority to call on anyone or institution to advise her. It is also not clear whether such proposed advisory bodies will be given additional powers. • Legislating advisory bodies in the way it is proposed could result in the progressive relegation of existing statutory bodies as new structures are put in place. • The proposal by the DPSA for the insertion of a new clause to provide for representation by organized labour and other stakeholders has been noted. The principle of participation is actively promoted by the PSC.

  13. GOVERNMENT AGENCIES • The DPSA suggested the insertion of a provision along the following lines in the Bill: • “An executive authority may only request the establishment of a government agency if the prescribed feasibility study has been conducted and such study recommends its establishment.” • The attempts by the DPSA to contain duplication and proliferation has been noted by the PSC. • The DPSA has updated the PSC on the consultative process they have had with stakeholders, which has resulted in proposed amendments to this clause. These include- • the changing of the names of government agencies to government components; and • the establishment of specialised service delivery units within departments. • DPSA has been cautioned about possible proliferation.

  14. DISCIPLINE • The proposal by the DPSA that the Public Service Regulations be amended to stipulate that an executing authority may not approve a shorter notice period if a disciplinary charge is pending against an employee, is supported. • Consideration should be given to the insertion of a deeming clause that if someone resigns while there is a pending disciplinary process, that person will be deemed as having been discharged from the Public Service on account of misconduct, provided that the department finalises the disciplinary case within a month of receiving the resignation request. • If a case is not finalized within such a time frame, the employee would not be deemed to be discharged from the Public Service on account of misconduct. • The PSC accepts that such a provision will, however, have to be done within the legal framework.

  15. GRIEVANCES • The PSC raised a concern that the additional subsection 4 to section 35, dealing with “Grievances of employees”, was ambiguous due to the fact that it refers to grievances of HoDs and it also refers to the resolution of grievances within a department, whilst HoDs cannot lodge their grievances within a department. • In order to address the ambiguity, it was suggested that – • provision be made for a HOD to lodge a grievance with the PSC; • provision be made for a HoD to utilise other dispute resolution mechanisms once the PSC process has been exhausted; and • reference to the exhausting of the departmental process should not include the HoD. • The DPSA has agreed to address the ambiguity.

  16. FINANCIAL DISCLOSURE FRAMEWORK • The PSC strongly recommended that a clause with similar contents to section 50(3)(a) and (b) of the PFMA be included in the Bill. The said section determines as follows: “A member of an accounting authority must- • disclose to the accounting authority any direct or indirect personal or private business interest that that member or any spouse, partner or close family member may have in any matter before the accounting authority; and • withdraw from the proceedings of the accounting authority when that matter is considered, unless the accounting authority decides that the member’s direct or indirect interest in the matter is trivial or irrelevant.” • Although the Code of Conduct provides for disclosure of interests and clause 41(1)(b)(vi) of the Bill provides for the MPSA to make regulations regarding the disclosure of financial interests by all employees or particular classes of employees and the monitoring of such interests, the PSC made the suggestion of the insertion of a section similar to section 50(3) of the PFMA in order to strengthen the Financial Disclosure Framework.

  17. TIMING OF THE BILL • The DPSA indicated that the proposed date of commencement of the Single Public Service legislation is now 2009. • The Review of State Institutions Supporting Constitutional Democracy (Chapter 9 Institutions) and the PSC established through Chapter 10 is currently being undertaken. • The outcome of the review process, could result in amendments to legislation regarding the functions of some of the institutions. The report of the Ad Hoc Committee is scheduled for June 2007, whereas the DPSA representatives expect the Bill to be passed by May 2007. The Bill will therefore not have taken into account any proposals from the Review process.

  18. IN CONCLUSION • The PSC no longer holds fundamental differences with the suggested amendments to the Bill. • The PSC has, however, provided cautionary advice to the DPSA in respect of certain areas. • The PSC has requested an opportunity to peruse the Bill once all amendments have been effected. THANK YOU

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