Skills Development Act, 1998
Guidelines regarding the Abolition of Industry Training Boards established in terms of section 12A and 12B of the Manpower Training Act, 1981
It is hereby published for general information that the Minister of Labour has, after consultation with the National Skills Authority, made guidelines in the Schedule.
Skills Development Act, 1998
Guidelines regarding the Abolition of Industry Training Boards
Annexure to Guidelines
2. Definitions and Interpretation
2.1In this Deed, the following words and expressions shall have the following meanings, unless otherwise stipulated or indicated by the context -
2.1.1 "Act" means the Skills Development Act 97 of 1998 as well as all regulations promulgated in terms thereof and the terms Act and Skills Development Act shall be used interchangeably in this deed;
2.1.2 "this Deed" means this Deed as specified in the preamble to this Deed, together with all annexures attached hereto;
2.1.3 "Assets" means all the corporeal and incorporeal assets of the training Board. Assets include, without limiting the generality of the foregoing, all movable, fixed, or immovable property corporeal or incorporeal, cash deposits, book debts, intellectual property rights, executory contracts, training schemes, loans deeds and investments, as contained in Annexure One hereto;
2.1.4 "Board Members" means the members of the Board of a Training Board accredited in terms of the Manpower Training Act (Act 56 of 1981), as repealed;
2.1.5 "Book Debts" means all book and other trade debts accrued or accruing and due to the Training Board as at the Effective Date, as contained in Annexure Five hereto;
2.1.6 "Business" means the whole of the activities conducted by the Training Board in terms of the Manpower Training Act at the Effective Date;
2.1.7 "Business Day" means any calender day (other than a Saturday) on which commercial banks are open for business;
2.1.8 "Date of Signature" means the date of signature of this Deed by the last party to sign this Deed;
2.1.9 "Disclosure Schedule" means the disclosure schedule to be delivered by the Training Board to the SETA pursuant to the signature of this Deed, containing all lists, descriptions, exceptions and other information disclosed by the Training Board; See Annexure Six.
2.1.10 "Effective Date" means the date of abolition of the ITB in terms of item 4(3) of Schedule 2 of the Act, being the date upon which the assets, rights, liabilities and obligations will be transferred from the Training Board to the SETA notwithstanding the Date of Signature;
2.1.11 "Effective Date Statements" means the financial statements of the Training Board consolidated in respect of the Business for the period ending at the date of abolition attached hereto as Annexure Seven;
2.1.12 "Fund" means a fund established in terms of Section 39(4) of the Manpower Training Act in order to fund a scheme created for the training of employees;
2.1.13 "Government" means the Government of the Republic of South Africa;
2.1.14 "Industry Training Board (ITB)" Shall have a similar definition referred to in the guidelines as defined in clause 2.1.20 hereunder;
2.1.15 "Intellectual Property" means all copyright in training (where applicable) modules and training material, trade names, defensive names, trade marks, patents, logos, designs, software licences and any other intellectual property rights used in connection with the Business as at the Effective Date, whether registered or unregistered, including all applications and rights to apply for assigning the same, including those listed in Annexure Eight attached hereto;
2.1.16 "Liabilities" means all claims against the Training Board including current, medium and long term liabilities, outstanding as at the Effective Date as listed in Annexure Three hereto;
2.1.17 "LRA" means the Labour Relations Act, No. 66 of 1995;
2.1.18 "Minister" means the Minister of Labour;
2.1.19 "Obligations" means the legal duty and responsibility owed by a Training Board in respect of;
2.1.19.1 employees in terms of employment contracts;
2.1.19.2 apprentices in terms of apprenticeship contracts;
2.1.19.3 students in terms of any bursary schemes;
2.1.19.4 any other scheme related to training but not limited to learnerships schemes or projects as listed in annexure seven hereto;
2.1.19.5 Outstanding contracts.
2.1.20 "Guidelines" means the guidelines published by the Minister to guide the abolition of purposes of this deed unless stated other wise, specifically the Regulations for the Abolition of the Industrial Training Boards;
2.1.21 "Rights" means all actions, entitlements and claims in favour of a Training Board has which are transferred to the SETA in terms of this deed, listed in Annexure Two hereto;
2.1.22 "Third Parties" means all parties who have concluded agreements with ITB’s and whose interests are adversely affected by the transfer of Assets, Rights, Liabilities and Obligations;
2.1.23 Any reference to the singular shall include the plural and vice versa;
2.1.24 A reference to any gender shall include the other genders;
2.1.25 Any reference to natural persons shall include legal persons and vice versa.
2.2 The headings of clauses in this Deed are for reference purposes only and shall not be taken into account in construing the contents hereof;
2.3 If any provisions in a definition is a substantive provision conferring rights or imposing obligations on any party effect shall be given to it as if it was a substantive clause in the body of the Deed notwithstanding that it is only contained in this clause;
2.4 If any period is referred to in this Deed by way of a reference to a number of days, the days shall be reckoned exclusively of the first and inclusively of the last day. If the last day fall on a day which is not a Business Day, then the last day of the said period shall fall on the next succeeding Business Day;
2.5 Words and expressions defined in any sub-clause shall for purposes of the clause of which that sub-clause forms part, bear the meaning assigned to such words and expressions in that sub-clause;
2.6 This document and the schedules together constitute one indivisible transaction and shall be interpreted as such.
2. Custody and Control of assets, liabilities, rights and obligations pending transfer
The Minister shall take control of the assets, liabilities, rights and obligations of the training board on its abolition pending the transfer referred to in item 4(4)(a) of the transitional provisions.
3. Delegation by Minister
The Minister may delegate the execution of transfer process in terms of item 4(4)(a) of the transitional provisions to the Director General or the office of the State Attorney.
4. Certificate of abolition and indemnity
The abolition of a training board shall be proved by the issuing of a certificate of abolition by the Minister to a designated SETA certifying that all assets, rights, liabilities and obligations of the training board have been transferred in terms of item 4(4)(a) of the transitional provisions and that the designated SETA is indemnified against any future claim or action arising out of the abolition of the training board.
5. Completion of Transfer
The transfer referred to in item 4(4)(a) shall be completed not later than 30 September 2000.
6. No effect on rights of third parties
1)The abolition of the training board shall not have any adverse effect on the rights and obligations of third parties who have concluded agreements, contracts or transactions with. the training board prior to such abolition.
2)The name of the training board in any agreement, contract or transaction including any document in connection with any legal proceedings, shall be deemed to have been replaced by a name of a designated SETA.
7. Transfer of assets, liabilities, rights and obligations of third parties
1)The Minister shall ensure that the rights of creditors, lessors and other interested parties whose proprietary rights are adversely affected by the transfer are protected and that the necessary consent has been obtained for the transfer of rights and obligations.
2)The Minister shall, with due regard to item 7(1) transfer the assets, liabilities, rights and obligations to the SETA and shall take all the necessary steps required to give effect to such transfer.
3)The transfer of obligations shall include existing quality assurance accreditation systems and accreditation agreements currently in force.
8. Transfer, retrenchment and remuneration of staff
1) Every person employed by a training board on the fixed date and who on that date would have been in the service of the training board but for the publication of these guidelines and who has not been offered a permanent position in a designated SETA shall with effect from the fixed date be placed in the service of the designated SETA in a supernumerary capacity until 30 September 2000 unless:
a) Offered a position with the designated SETA or another SETA; or
b) Retrenchment is agreed before this date.
2) The provisions of any contract of service and the condition of service applying to any person referred to in sub item (1) on the fixed date and which would have applied to him or her on the fixed date but for the publication of these guidelines, shall without change, subject to sub item (3), continue to apply to him or her until he or she is transferred and employed or retrenched in terms of the Labour Relations Act, 1995 (Act 66 of 1995).
3) The conditions of service referred to in sub item 8(2) may, after the fixed date be amended by the designated SETA or another SETA after consultation with such person; provided that any such amendment shall not, result in less favourable conditions of service for the person concerned than those that applied to him or her prior to the fixed date.
4) The provisions of these guidelines, and of the Labour Relations Act, 1995 (Act 66 of 1995), shall continue to apply to a person referred to in subsection (1) save in so far as the negotiation and determination of his or her remuneration in respect of his or her employment are concerned.
5) Vacation leave standing to the credit of any person with the training board shall stand to his or her credit in the SETA.
6) Pensionable service performed by any person in the service of the training board and pensionable service recognized by the training board shall continue to exist as if the training board is not abolished;
7) A person shall not as a consequence of such transfer and appointment acquire a retirement age which is less favourable than that which applied to him to or her in the service of the training board;
8) Any person shall, within six months after his or her transfer to and appointment by the SETA concerned, be given a non-recurrent choice either to remain a member of the pension fund of which he or she was a member while in the service of the training board or to become a member of the pension fund established by a SETA.
9) Any disciplinary steps instituted or being considered against such person in respect of alleged misconduct or improper conduct committed before the date of his or her transfer and appointment shall be dealt with as if such person was an employee of the SETA at the time when the misconduct or improper conduct was committed.
9. Settling of liabilities and obligations
1) The SETA shall honour the liabilities and obligations referred to in item 4(4)(a) of the Act out of assistance referred to in section 9(3) of the Act and shall keep and maintain such financial records and systems and bank accounts for that purpose.
2)The provisions of item 9(1) shall only apply if:
a) the assets and rights transferred to a SETA cannot satisfy the liabilities and obligations referred to therein;
b) the SETA fails to raise money with financial institutions or otherwise for that purpose.
10. Deed of Transfer
The transfer shall be completed by the signing of deed of transfer between the training board, designated SETA and the Minister. A draft model deed is attached to these guideline for your information.
11. Representations and Warranties by Officials and Members of the Board
Subject to the disclosure schedule to the transfer deed the officials and members of a training board shall make representations and warranties to the transfer in terms of items 4(4)(a) of the transitional provisions that the training board has complied with the provisions of the Manpower Training Act, 1981 in all material respects.
12. Administration of Laws
The administration or exercise of any power or right conferred or duty imposed on the training board shall on the fixed date pass to the SETA as provided in item 4(4) of Schedule 2 of the Act.