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FURTHER EDUCATION AND TRAINING (FET) BILL

TRANSFER OF CONTRACTS OF EMPLOYMENT OF STATE-EMPLOYED LECTURERS AND SUPPORT STAFF TO THE EMPLOYMENT OF COLLEGE COUNCILS: NAPTOSA’S CONCERNS

1.  This document focuses on NAPTOSA’s primary concerns regarding the proposed transfer of contracts of employment of state-employed lecturers and support staff to the employment of by college councils

2.  Transfer of contracts of employment of state-employed lecturers and support staff to college councils

2.1  In section 20 the Bill provides for college councils to be the employer of all lecturers and support staff, to determine and establish posts for lecturers and support staff and to determine the functions, conditions of service and privileges of lecturers and staff.

2.2  Section 54(1) provides for transitional measures pertaining to staff. Reference is made to section 197 of the Labour Relations Act (LRA). This section states, inter alia, that all the rights and obligations between the old employer and an employee at the time of the transfer continue in force as if they had been the rights and obligations between the new employer and the employee.

The LRA clearly takes precedence over any other legislation in matters related to labour issues. Whilst section 197 of the LRA does make provision for the transfer of contracts of employees, NAPTOSA is of the opinion that section 197 does not apply to the proposed transfer of contracts in this instance. The LRA (section 197) only applies to the transfer of contracts in the context of a going concern. In this instance, the colleges (going concerns) are not being transferred. They will remain public institutions controlled (and managed, through management staff) by the State. It is only the contracts of employees that will be transferred to the college councils, i.e. into the “private sector”. Section 197 does not make provision for this.

Also there is no precedence for transfers such as are being proposed in this instance. In other instances the State has transferred contracts when they transferred e.g. state forests to the private sector. This could be regarded as a “going concern”. This was done after negotiations took place and the parties concerned signed an agreement. The proposed transfer of staff, separately from the institution, is clearly different.

2.3 The circumstances, which most closely resemble the proposed transfer of contracts of college employees, exist in the amalgamation of colleges of education with universities. However, there are significant differences between the two:

·  Colleges of education were transferred as “going concerns” to the universities.

·  After extensive negotiations between the unions and the state, a resolution was signed, giving the staff of the colleges of education staff 3 options:

-  to be transferred with the college to the employ of the university with new conditions of service;

-  to remain in the employ of the education departments with retention of conditions of service and benefits, but to be redeployed;

-  to take up the option of a beneficial severance package.

These options do not exist for state-employed FET college staff.

2.4 In view of the fact that the LRA is silent on the transfer of employment contracts outside of the context of a going concern, it is therefore, reasonable to regard such a transfer as unfair labour practice. NAPTOSA would argue that what is being proposed, falls outside of the provisions of the LRA and therefore, constitutes an unfair labour practice, especially in the absence of any negotiations.

In the case of transfer of contracts outside section 197 there must be agreement on the conditions of service under the common law. In this instance there has been no agreement. Clearly in order to reach agreement before the transfer, there have to be negotiations. For college staff, this should take place in the Education Labour Relations Council (ELRC) since they are employed under the Employment of Educators Act. No negotiations have taken place to date. There are no agreements in this respect.

3.  Protection of conditions of service of lecturers s and support staff

3.1  Lecturers and support staff have been given assurance that their conditions of employment of lecturers and support staff are protected in the Bill.

3.2  As stated above, reference to section 197, is invalid and, therefore, the protection of conditions of service in terms of this specific section does not exists.

3.3  NAPTOSA has also been assured on several occasions that the conditions of service of lecturers and support staff would not be less than the conditions of service pertained in the Public Service Act. However, it must be noted that reference to the Public Service Act in this regard was removed in the first round of amendments. In terms of section 20(4) the college council must determine, inter alia, the conditions of service of employees, subject to the minimum norms (Basic Conditions of Employment Act) and the Labour Relations Act. As indicated above, NAPTOSA is convinced that the Labour Relations Act is not applicable in this regard.

4.  Flexibility with regard to conditions of service

4.1  As far as NAPTOSA has been able to ascertain, the only reason for the proposed transfer of contracts of employees from the state to the college councils, is to provide FET colleges with greater flexibility in respect of how staff will be utilised to obtain a greater flexibility regarding the programmes/qualifications that colleges may wish to offer.

4.2  NAPTOSA is of the opinion that certain current conditions of service allow for a more flexible approach, e.g. hours of work and workload (a collective agreement was signed in 2000 the ELRC specifically for lecturers). NAPTOSA would appreciate an opportunity to enter into discussions with the deportment of education with regard to the application of conditions of service of state-employed staff in a more flexible manner.

4.3  Flexibility with regard to the qualifications of lecturers already exists. The provisions of the Personnel Administrative Measures (PAM) with regard to the qualifications of lecturers were amended in August 2001. In terms of these provisions (paragraph 2.2 of chapter B of the PAM) lecturers employed at a FET college are exempted from the requirement of a professional qualification (teaching qualification). Statements made to the contrary are incorrect.

4.4  Provincial departments of education also issue separate vacancy lists of FET colleges. Lecturers have to comply with the requirements of the advertised posts (advertised in terms of the needs of the college) in order to be appointed.

5. Conclusion

NAPTOSA is of the view that there is no legal precedent for transferring only the contracts of the state-employed staff to college councils. The colleges, as going concerns, are not being transferred,. NAPTOSA is of the view that such transfers would constitute unfair labour practice.

NAPTOSA also believes that such a move would service to destabilise the FET college sector at a time when FET colleges should begin to play a fat more significant role in meeting the skills needs of the country.