CHIETA Audit Committee Capacity Building Presentation “IDENTIFICATION OF RELEVANT AND APPLICABLE LEGISLATION TO THE OPERATIONS OF CHIETA” By Farhad Motala

Skills Development System National Skills Fund STAKEHOLDER COMPANY SARS DEPARTMENT OF LABOUR Register SDF & Submit WSP Approved by CHIETA Submit Annual WSP Implementation Report / Approved by CHIETA Levy Disbursement   CHIETA Submit Application for Discretionary Grant / Approved by CHIETA Skills Development Quality Assurance - Skills Programmes - Learnerships - Strategic Initiatives LEARNERS - Training Providers - Training Programmes - Training Facilities - Assessors - Employed - Unemployed Administration - Day-to-day Operations Training Programmes & Learnerships (Accredited & Registered) TRAINING PROVIDERS QUALIFICATION - In-house - External

Legal Compliance Evaluate your compliance measures according to the different pieces of legislation: Employment Equity Act Basic Conditions of Employment Act Labour Relations Act (Labour Law and Industrial Relations Act) Skills Development Act BEE Legislation – Affirmative Action (AA) and BEE programs Audit your legislative compliance to identify your gaps and formulate an action plan to rectify them Properly assess your compliance status to boost your employment equity transformation targets Ensure you comply with legal requirements and procedures for good corporate governance

Skills Development Act, Act 97 of 1998 This Act provides an institutional framework to devise and implement national, sector and workplace strategies: to develop and improve the skills of the South African workforce; to integrate those strategies within the National Qualifications Framework contemplated in the South African Qualifications Authority Act, Act 58 of 1995; to provide for learnerships that lead to recognised occupational qualifications; to provide for the financing of skills development by means of a levy-grant system scheme and a National Skills Fund; and to provide for and regulate employment services

Skills Development Act, Act 9 of 1999 The Act deals with the imposing, collection and disbursement of the skills development levy.

Regulation 7091: Skills Development Regulations This regulation was published in Regulation Gazette 22398, vol. 432 dated 22 June 2001. The regulations deal with the following: Financial year of SETAs; SETA finances; Transfer of funds by the Minister if administration of SETA is taken over; and Allocation of grants by the SETA. This regulation is applicable to the SETA, chambers, finance committee and skills development and learnership committee

Labour Relations Act, Act 66 of 1995 This act is applicable to the operations of the SETA and staff within the SETA and chambers. The Human Resource Committee needs to take the act in its whole into consideration and they need to develop policies and procedures with regard to disciplinary actions, disputes resolutions, dismissals and a code of conduct.

Employment Equity Act, Act 55 of 1998 The purpose of this Act is to achieve equity in the workplace by promoting equal opportunities and fair treatment in employment through the elimination of unfair discrimination and the implementation of affirmative action measures to redress the disadvantages in employment.

Areas of importance are the following: Definition of designated employer that is defined as follows: an employer who employs 50 or more employees; an employer who employs fewer that 50 employees, but has a total annual turnover that is equal to or above the applicable annual turnover of a small business in terms of Schedule 4 of the Act; a municipality, as referred to in Chapter 7 of the Constitution; an organ of state as defined on section 239 of the Constitution, but excluding local spheres of government, the National Defence Force, the National Intelligence Agency and the South African Secret Service; and an employer bound by a collective agreement in terms of section 23 or 31 of the Labour Relations Act, which appoints it as a designated employers in terms of this act, to the extent provided in the agreement.

Sections that are of concern for the SETA, chambers and the human resource committee are: Section 19: Analysis of employment policies, practices, procedures and the working environment to identify employment barriers and to include a profile of the workforce within each occupational category and level. Section 20: Employment Equity Plan that must be prepared and implemented according to the sub-sections of this section. Section 21: The submission of reports to the Director-General of Labour according to the information as identified in section 20 and must be signed by the Executive Officer.

Employment Equity Regulations The following regulations are applicable: Regulation 7047: Draft code of good practice: Key aspects of disability in the workplace. This regulation deals with the protection of people with disabilities against unfair discrimination and entitles them to affirmative action measures; Regulation 6883: Forms for reporting to the Department of Labour; and Regulation 6674: Regulations under the employment equity act, commencement notice, regulations and code.

Basic Conditions of Employment Act, Act 75 of 1997 The Act gives effect to the right to fair labour practices referred to in section 23(1) of the Constitution by establishing and making provision for the regulation of basic conditions of employment. The SETA and especially the human resource committee need to develop conditions of employment for the SETA staff The conditions as set out in the SETA conditions of employment must not be lower than the conditions as set out in the Act, unless it was agreed to in a collective agreement with the unions. It is also important that this act applies to learners undergoing training according to the Skills Development Act. Sectoral determinations can however be made according to section 55(4) in respect of the sector.

Occupational Health and Safety Act, Act 85 of 1993 This act provides for the health and safety of persons at work and for the health and safety of persons in connection with the use of plant and machinery. It provides further for the protection of persons other than persons at work against hazards to health and safety arising out or in connection with the activities of persons at work.

The act is of importance to the skills development and learnership committee and quality assurance committee as every employer shall according to section 8(1) provide and maintain as far as reasonably possible, a working environment that is safe and without risk to the health of his/her employees. Section 8(2)(e) must provide such information, instructions, training and supervision as maybe Section 17 makes provision for the appointment of health and safety representatives and section 18 describes the functions of the health and safety representatives.

Unemployment Insurance Act, Act 30 of 1966 This acts consolidates the laws relating to the unemployment insurance fund, the payment of benefits to certain people, the payment of certain amounts to dependents of certain deceased persons and the combating of unemployment.

Chapter V deals with the registration and duties of, and payments of contributions by employers. The chapter deals with the notifications of employers to the Director-General about particulars of their business and any other information as required by the Director-General. It deals further with the contributions by employers and contributors and from public funds, statements that need to be furnished and the failure of payments. Employers further need to keep records of every contributor employed by him as well as contributors’ record cards

South African Qualifications Authority Act, Act 58 of 1995 This act provides for the development and implementation of the National Qualifications Framework and the establishment of the South African Qualifications Authority. It is an enabling act and the development and implementation of the National Qualifications Framework is regulated by regulations.

Regulation 1127: Education and Training Quality Assurance Body Regulations This regulation states that Education and Training Quality Assurance Bodies (ETQAs) shall be accredited in each sector by the South African Qualifications Authority (SAQA) for the purposes of monitoring and auditing achievements in terms of nations qualifications and standards, and to which specific functions relating to the monitoring and auditing of national qualifications and standards shall be assigned according to the SAQA Act. Section 10(1)(e) requires from SETA to apply for ETQA status from SAQA. SAQA will accredit ETQAs if they comply with certain criteria for accreditation.

Regulation 452: National Standards Bodies Regulations ETQAs must recommend new standards and/or qualifications to National Standards Bodies for consideration, or modification to existing standards or qualifications. ETQAs therefore must according to ETQA regulations section 9(2)(a) abide by the NSB regulations. It is important to remember when establishing Standards Generating Bodies to generate qualifications and standards for learnerships.

Higher Education Act, Act 101 of 1997 This act was promulgated to: Regulate higher education; Provide for the establishment, composition and functions of the Council for Higher Education; Provide for the establishment, governance and funding of public higher education institutions; Provide for the appointment of independent assessors; Provide for the registration of private higher education institutions; and Provide for quality assurance and quality promotion in higher education.

The different sections that are applicable to the SETA, it’s standing committees and the chambers are indicated in the matrix. It is of extreme importance to consult with the Council for Higher Education on the accreditation of providers to offer learning programmes as well as to accredit the learning programmes against national qualifications and standards that are registered on the NQF. There needs to be a Memorandum of Understanding between the SETA ETQA committee and the Council for Higher Education on the accreditation of providers and learning programmes.

Further Education and Training Act, Act 98 of 1998 This act was promulgated to: Regulate further education and training; Provide for the establishment, governance and funding of public further education and training institutions; Provide for the registration of private further education and training institutions; and Provide for quality assurance and quality promotion in further education and training institutions.

It is again important to develop a memorandum of understanding with the quality assurance body in the Further Education and Training field, as most of the learnerships will be placed in this area. The relevant sections are indicated in the matrix.

Schools Act, Act 84 of 1996 The Schools Act itself is not of importance to the SETA. The organisation who is responsible for the quality assurance on level 1 of the NQF will be of importance, as some of the industry qualifications might be registered on NQF level 1

Adult Basic Education and Training Act, Act 52 of 2000 This act was promulgated to: Regulate adult basic education and training; Provide for the establishment, governance and funding of public adult learning centres; Provide for the registration of private adult learning centres; and Provide for quality assurance and quality promotion in adult basic education and training.

The Quality Assurance and Skills Development and Learnerships committees need to take the relevant sections into consideration, especially with the accreditation of providers and learning programmes. There should be a memorandum of understanding between the SETA and the body responsible for quality assurance in Adult Basic Education and Training.

National Education Policy Act, Act 27 of 1996 This act makes provision for the determination of national policy for education. SETAs (and especially the Skills Development and Learnership and Quality Assurance Committees), need to liaise with the Minister of Education on the development of national policy for planning, provision, financing, staffing, co- ordination, management, governance, programmes, monitoring, evaluation and well-being of the education system. Section 4 of the act gives directive principles for the development of education policies.

Public Finance Management Act, Act 1 of 1999 This act was promulgated to: Regulate financial management in the national government; Ensure that all revenue, expenditure, assets and liabilities of that government are managed efficiently and effectively; and Provide for the responsibilities of persons entrusted with financial management in that government.

A national department is defined by the act as a department listed in Schedule 1 of the Public Service Act, Act 1994 and a national public entity as a national government enterprise, or a board, commission, company, corporation, fund or any other entity which is established in terms of national legislation, which are fully or substantially funded from the National Revenue Fund, or by way of a tax, levy or other money imposed in terms of national legislation.

All SETAs are according to this definition a public entity and need to adhere to the act, as it is funded according to section 14 of the Skills Development Act, Act 1998 from skills development levies that are imposed according to section 3 of the Skills Development Levies Act, Act 1999.

National Treasury must according to section 7 of the Act, prescribe a framework within which departments and public entities must conduct their cash management. Section 49 states that every public entity must have an authority which is accountable for the purposes of the act. The SETA council is according to section 49(2)(a) the accounting authority for the SETA. The act describes the fiduciary duties of the accounting authorities in section 50 of the Act.

It states in section 50(3)(a) and (b) that any member on the accounting authority must disclose any direct or indirect personal or private business interest that the member or any spouse, partner or close family member may have in any matter and must withdraw from the proceedings when that matter is considered. It therefore implies that there must be a code of good conduct that must be signed by all members of the authority (council).

GENERAL POINTS This is not an exhaustive list The Constitution of South Africa The Public Finance Management Act The Constitution of the CHIETA King Reports on Corporate Governance The seven characteristics of good corporate governance are: discipline; transparency; independence; accountability; responsibility; fairness; and social responsibility. NSDS Targets