NOTICE 1296 OF 1997

DEPARTMENT OF LABOUR

THE SKILLS DEVELOPMENT BILL 1997


The public are invited to respond to the skills Development Bill.

Written responses should reach the Department of Labour at the address below not later than 20 October 1997.

Written comments should be sent to:

For further enquiries please phone: Santa de Jager at (012) 309-4319 or Julia Wilkens at (012) 309-4683


BILL

To provide for a skills development strategy which is flexible, accessible, decentralised, demand-led and based on a partnership between the public and private sectors, and for that purpose -


ARRANGEMENT OF ACT


BE IT ENACTED by the Parliament of the Republic of South Africa, as follows:-

CHAPTER 1 - OBJECTS AND INTERPRETATION

Objects and interpretation

1. (1) The objects of this Act are -

  1. to provide for a skills development strategy which is flexible, accessible, decentralised, demand-led and based on partnerships between the public and private sectors;
  2. to improve the competency levels of the workforce in order to promote the level of responsibility of employees and to enable employers to achieve rising levels of productivity and competitiveness;
  3. to enable persons of working age who are outside of work to obtain nationally recognised qualifications indicating work readiness;
  4. to enable persons to enter and remain in employment or become self-employed and enjoy a rising standard of living;
  5. to provide for special assistance to target groups to enter and remain in employment or become self-employed.

(2) This Act binds the State.

CHAPTER 2 - INFORMATION

Establishment of Research and Strategic Planning Unit

2. The Director-General must, subject to the laws governing the public service, establish a Research and Strategic Planning Unit in the Department of Labour.

Functions of Research and Strategic Planning Unit

3. The Research and Strategic Planning Unit must in the prescribed manner research and analyse labour market trends in order to determine training needs, and must -

  1. assist the Minister and the National Skills Authority to formulate a long-term national skills development strategy and to evaluate its progress;
  2. advise the Minister and the National Skills Authority on skills trends and future skills needs;
  3. provide Employment Services with skills information to upgrade the quality of their services;
  4. assist SETAs and ETB’s to determine their training needs;
  5. assist Government departments to determine their training needs; and
  6. assist training providers to align their training programmes to changing market conditions.

CHAPTER 3 - EMPLOYMENT SERVICES

Establishment of Employment Services

4. The Director-General -

  1. must establish and maintain Employment Services in the Department of Labour; and
  2. must in accordance with the prescribed criteria, accredit private or public Employment Services before they may perform the functions contemplated in section 5.

Functions of Employment Services

5. An Employment Service must -

(a) manage employment counselling by -

(i) assisting persons to make informed career choices;

(ii) providing persons and communities with career and labour market knowledge and certain life skills relevant to careers and the world of work;

(iii) assisting persons by means of life skills programmes to apply ethical standards at work, to improve their productivity and to assume social responsibility; and

(iv) assisting employers and employees affected by retrenchment;

(b) manage placement services by -

(i) registering work-seekers and other clients and referring them to appropriate services;

(ii) assessing persons for entry or re-entry into employment, self-employment or training;

(iii) facilitating the best possible job match between work-seekers and vacancies at prospective employers;

(iv) referring work-seekers for training to appropriate training providers; and

(v) informing persons of services available to them such as small business support and welfare services;

(c) render special assistance by -

(i) referring persons in target groups to appropriate training providers;

(ii) assisting persons with special problems, such as alcoholics, drug addicts and ex-prisoners after their rehabilitation, to enter or re-enter the labour market;

(iii) supporting communities to start income generating and training projects linked to local economy initiatives and to assist them to get support for skills development; and

(iv) developing special employment programmes to enable individuals in target groups to participate actively in the labour market.

(d) provide careers and labour market information by collecting, analysing and disseminating information about training, career and employment opportunities in the labour market; and

(e) collect and maintain statistics of all users of the Employment Service.

CHAPTER 4 - LEARNERSHIPS

Learnerships

6. (1) A learnership must -

  1. consist of a structured learning component and a practical work experience component;
  2. lead to a registered qualification as contemplated in section 7(b); and
  3. guarantee that the successful candidate is competent for the specified occupation.

(2) Practical work experience may, with the approval of the relevant SETA, be provided at one or more workplaces, at a development or job creation project or by a group of employers working together to provide the practical experience.

Development of learnerships

7. A SETA must -

  1. with the concurrence of the Minister, develop learnerships in areas of need and opportunity in its sector, in accordance with the prescribed criteria;
  2. propose standards and qualifications relating to these learnerships to the South African Qualifications Authority, for registration;
  3. manage the implementation of learnerships in accordance with the prescribed guidelines; and
  4. conduct assessments and issue certificates of the appropriate registered qualifications contemplated in paragraph (b) to successful candidates, in accordance with the requirements of the South African Qualifications Authority.

Learnership agreements

8. (1) A learnership agreement in the prescribed form may be entered into by any person who desires to acquire any skills or to improve his or her skills.

(2) A learnership agreement contemplated in subsection (1) must be entered into with -

  1. the accredited training provider that provides the structured theoretical training; and
  2. the employer or person that provides the practical work experience, required for the relevant qualification, according to its registration as contemplated in section 7(b).

(3) A learnership agreement must be registered with the relevant SETA, in the prescribed manner.

(4) A SETA must provide the Director-General, or any person designated by him or her, with the prescribed record of learnership agreements.

(5) All disputes arising from learnership agreements must be dealt with through the dispute resolution procedures set out in the Labour Relations Act, 1995 (Act No. 66 of 1995).

CHAPTER 5 -OTHER TRAINING PROGRAMMES

Other training programmes

9.(1) Training programmes other than learnerships, for which national standards and qualifications are registered in terms of the South African Qualifications Authority Act, 1995 (Act No. 58 of 1995), may qualify for financial assistance under this Act.

(2) The implementation of such a training programme may be managed by a SETA or any other body authorised by the Minister to do so.

CHAPTER 6 -IMPROVING TRAINING PROVISION

Quality and relevance of skills development programmes

10. To promote the quality and relevance of skills development programmes -

  1. a SETA must seek accreditation in terms of section 5(1)(a)(ii)(bb) of the South African Qualifications Authority Act, 1995 (Act No. 58 of 1995), as a body responsible for monitoring and auditing achievements; and
  2. a SETA and an authorised body must comply with the requirements of the South African Qualifications Authority for setting standards and designing qualifications.

Procedures for financing

11. An ETB or authorised body may receive funds to pay training providers for the provision of training in a learnership or other training programme, if -

  1. the standards which the programme aims to achieve are registered by the South African Qualifications Authority, or specific exemption has been granted by the Minister;
  2. the objectives of the programme and performance criteria required of the training provider are clearly indicated in a training agreement;
  3. in the case of learnerships, the SETA confirms that the training provider party to the learnership agreement is accredited in terms of the South African Qualifications Authority Act, 1995 (Act No. 58 of 1995) ;
  4. in the case of other training programmes, the ETB or authorised body in all cases has called for tenders in the prescribed manner from training providers who wish to provide the training;
  5. the ETB or authorised body has entered into an agreement with the successful training provider; and
  6. the prescribed conditions for the release of funds are met.

Training providers

12. To qualify for funds a training provider must -

  1. be accredited in terms of South African Qualifications Authority Act, 1995 (Act No. 58 of 1995), and comply with the prescribed requirements to obtain funds for training;
  2. receive the approval of the relevant SETA, where it is a party to a learnership agreement, or, in all other cases, comply with the prescribed tender procedures governing the provision of training, and, if successful, enter into an agreement with the relevant ETB or authorised body; and
  3. report as required in the agreement to the relevant ETB or authorised body on training done.

CHAPTER 7 - FINANCING

Skills development levy

13. (1) (a) To achieve the objects of this Act the Minister must, with the concurrence of the Minister of Finance, by notice in the Government Gazette impose a levy of between one and one and a half per cent on the personnel costs of each employer in the Republic, but the Minister may in respect of a specific sector or subsector provide for an alternative formula to calculate the levy.

(2) The notice contemplated in subsection (1) -

  1. must state the percentage of the levy;
  2. must state the date on which the levy becomes payable;
  3. may require employers to keep the records, and to render the returns, specified in the notice;
  4. may provide for the exemption of any category of employers from the liability to pay the levy; and
  5. may provide for any other matter which is necessary to ensure the effective administration of the notice.

(3) Levies must be paid in the prescribed manner to the South African Revenue Service, which must pay -

  1. eighty per cent of the levies received, on the prescribed conditions, into the Education and Training Funds established in terms of section 15, in proportion to the levies received from the employers in the different sub-sectors or industries; and
  2. twenty per cent of the levies received into the National Skills Fund established by section 14.

(4) (a) Any employer who fails to pay a levy as prescribed, is guilty of an offence and liable on conviction to a fine not exceeding five per cent of his or her personnel costs for the period of non-payment.

(5) An ETB may collect an additional voluntary levy in its subsector or industry.

Education and Training Funds

14. (1) Each ETB must establish an Education and Training Fund, into which must be paid-

  1. the relevant portion of the levies contemplated in section 13(3)(a);
  2. any voluntary levies collected under section 13(5);
  3. interest earned on investments contemplated in subsection (3);
  4. donations to the relevant Fund; and
  5. any other money received for the relevant Fund from any source.

(2) An ETB must -

  1. use the money in its Fund to support the prescribed training schemes in its subsector or industry, in accordance with the prescribed criteria;
  2. keep proper accounts of all money received for its Fund and payments made from it, and the accounts must be audited by a public auditor registered under the Public Accountants’ and Auditors’ Act, 1991 (Act No. 80 of 1991); and
  3. quarterly and annually report to the relevant SETA, subject to subsection (4), on how the money in its Fund has been spent and on the progress made against the prescribed criteria.

(3) Any unexpended balance in an Education and Training Fund at the end of a financial year must be carried forward to the next financial year as a credit in the Fund.

(4) Where no ETB exists in a subsector or an industry, the relevant SETA is regarded as the ETB for the purposes of this section, except that the report contemplated in subsection (2)(c) must be made to the Director-General.

National Skills Fund

15. (1) There is a National Skills Fund into which must be paid -

  1. the percentage of the levies mentioned in section 13(3)(b);
  2. money appropriated by Parliament for this Fund;
  3. interest earned on investments contemplated in subsection (5);
  4. donations to this Fund; and
  5. any other money received for this Fund from any source.

(2) The Director-General must administer this Fund subject to the directions of the Minister, and is for the purposes of the Exchequer Act, 1975 (Act No. 66 of 1975), the accounting officer of this Fund.

(3) The Director-General must keep proper accounts of all money paid into and out of this Fund, and the accounts must be audited by the Auditor-General.

(4) (a) The money in this Fund must be used for allocations to ETBs or authorised bodies in accordance with the prescribed criteria.

    (b) An ETB or authorised body that has received allocations contemplated in paragraph (a) must -

    (i) use the money to support the prescribed training programmes in accordance with the prescribed criteria;

    (ii) keep proper accounts of each allocation received and payments made from it, and these accounts must be audited by the Auditor-General; and

    (iii) quarterly and annually report to the relevant SETA, subject to paragraph (c), on how the allocations have been spent and on the progress made against the prescribed criteria.

    (c) Where no ETB exists in a particular subsector or industry, the relevant SETA is regarded as the ETB for the purposes of this subsection, except that the report contemplated in paragraph (b)(iii) must be made to the Director-General.

(5) Money in this Fund which is not required for immediate use, must be invested with the Corporation for Public Deposits establish by section 2 of the Corporation for Public Deposits Act, 1984 (Act No. 46 of 1984), and may be withdrawn when it is required for use.

(6) Any unexpended balance in this Fund at the end of any financial year must be carried forward to the next financial year as a credit in the Fund.

CHAPTER 8 - CO-ORDINATION

Co-ordination of skills development strategy

16. The national skills development strategy is co-ordinated by SETAs, ETBs and the National Skills Authority, under the control of the Minister.

Establishment of Sector Education and Training Authorities

17.(1)The Minister must prescribe sectors, for which SETAs must be established in accordance with the prescribed procedure.

(2) In each sector employers, trade unions and other interested parties must identify subsectors or industries covering the entire sector.

(3) A SETA must be established in accordance with the prescribed criteria, which must provide for -

  1. equal representation for employers and trade unions in the sector, with due regard to the interests of small enterprises;
  2. representation for Government departments, where applicable;
  3. representation for interested professional bodies in the sector

(4) Representatives contemplated in subsection (3) must be drawn from ETBs established in terms of section 18 in the relevant sector.

(5) A SETA must establish an administrative office, which may be subsidised by the Minister from money appropriated by Parliament, and must report to the Director-General on the use of such subsidy.

Establishment of Education and Training Boards

18.(1) For each subsector or industry contemplated in section 17(2) an ETB must be established in accordance with the prescribed procedure.

(2) An ETB must be established in accordance with the prescribed criteria, which must include –

  1. equal representation for employers and trade unions in the subsector or industry, with due regard to the interests of small enterprises; and
  2. representation for Government departments, where applicable;

Registration of SETAs and ETBs

19.(1) A SETA, in conjunction with the ETBs in the sector, must in the prescribed manner apply for registration to the Minister, who may approve of the applications on the conditions that he or she may determine, after consultation with the National Skills Authority.

(2) (a) The registration of a SETA or an ETB may after due notice be withdrawn by the Minister, if a condition of registration is not being complied with.

Functions of Education and Training Boards

20. (1)(a) In addition to the other functions referred to in this Act, an ETB has such functions in respect of its subsector or industry as may be assigned to it by the SETA concerned under paragraph (b).

(2) An ETB must perform its functions contemplated in subsection (1) under the supervision of the SETA concerned.

(3) An ETB must monitor education and training within the scope of its functions, and must in the prescribed manner investigate any alleged irregularities committed by training providers, employers or enterprises in its subsector or industry.

Functions of Sector Education and Training Authorities

21. In addition to the other functions referred to in this Act, a SETA has the following functions:

  1. General functions:
    1. To promote a strategic approach to human resource development within the sector.
    2. To liaise with Employment Services to improve information about, and to directly support access to employment opportunities in the sector.
    3. In conjunction with other SETAs, to design and implement skills development strategies to assist employees facing retrenchment.
  2. Learnership functions:
    1. To identify training places for learners in the sector or sub-sectors.
    2. To facilitate and register learnership agreements between companies and learners.
    3. To support the design of learnerships.
    4. To support the development of learning materials and delivery of learnerships.
  3. Support of employee and management training in small, micro and medium enterprises.
  4. Quality assurance functions contemplated in section 10.
  5. Planning and reporting functions:
    1. To plan skills development in the sector in accordance with the prescribed guidelines.
    2. To report on skills development in accordance with the prescribed guidelines.
  6. Promotion of public and private partnerships for skills development in the sector:
    1. To promote skills for social delivery in the sector.
    2. To increase access of target groups to skills development in the sector.
  7. Financial functions:
    1. To assist employers in its sector to comply with the prescribed criteria for accessing grants and subsidies.
    2. To consolidate reports from ETBs it its sector, and to report quarterly and annually to the Director-General in accordance with the prescribed criteria.
  8. Monitoring and investigating functions:
    1. To monitor education and training within the scope of its functions.
    2. To investigate in the prescribed manner, on behalf of the Director-General, any alleged irregularities committed by ETBs in its sector.

Establishment of National Skills Authority

22. (1) There is a National Skills Authority, which consists of -

  1. a member appointed by the Minister as the chairperson of the Authority;
  2. five members appointed by the Minister from nominations made by employers’ organisations;
  3. five members appointed by the Minister from nominations made by trade unions;
  4. five members appointed by the Minister, one each from nominations made by the Ministers of -
    1. Education;
    2. Labour;
    3. Trade and Industry;
    4. Public Service and Administration; and
    5. Arts, Culture, Science and Technology;
  5. (e) five members appointed by the Minister, one each from nominations made by organisations representing -
    1. the youth;
    2. the disabled;
    3. women;
    4. rural people; and
    5. urban people;
  6. (f) five members appointed by the Minister from nominations made by national organisations representing training providers;
  7. (g) two members appointed by the Minister for their expertise in Employment Services; and
  8. (h) the executive officer contemplated in section 25(1).

(2) The Minister must by notice in the Government Gazette invite nominations contemplated in subsection (1), and if no or insufficient nominations have been received from a particular category contemplated in subsection (1) within 30 days of the publication of the notice, the Minister may appoint any person who is able to represent that category as a member.

(3) A member is appointed for three years, and may be re-appointed when the National Skills Authority is reconstituted in terms of subsections (1) and (2).

(4) The Minister may at any time terminate the membership of a member, if there are good reasons to do so.

(5) Any vacancy in the National Skills Authority must be filled with due regard to subsections (1) and (2), and such member must be appointed for the unexpired term of office of the member in whose place he or she is appointed.

(6) The Minister of Finance must nominate a representative to advise the National Skills Authority.

Chairpersons of National Skills Authority

23. (1) The Minister must designate four members, one each from nominations made by members appointed in terms of section 22(1)(b), (c), (d) and (e), as deputy chairpersons.

(2) If the chairperson is absent from any meeting, the deputy chairpersons must elect one of them to preside at that meeting, and if all the deputy chairpersons are also absent from a meeting the members present must elect one of them to preside at that meeting.

Meetings of National Skills Authority

24.(1) Thirteen members of the National Skills Authority constitute a quorum.

(2) A decision of the majority of the members present at a meeting constitutes a decision of the National Skills Authority.

(3) No decision taken by the National Skills Authority is invalid by reason only of a vacancy on the Authority or the fact that a person who was not entitled to sit as a member was present when the decision was taken, if the decision was taken in accordance with subsection (2).

Administration of National Skills Authority

25.(1) The Director-General must, subject to the laws governing the public service and after consultation with the National Skills Authority, appoint an executive officer and the necessary staff to assist the National Skills Authority and its committees with the administration of their functions.

(2) A member of the National Skills Authority who is not in the full-time employment of the State must be paid the remuneration and allowances determined by the Minister, with the concurrence of the Minister of Finance.

Committees of National Skills Authority

26. (1) The chairperson, the four deputy chairpersons, the chairperson of the employment services committee contemplated in subsection (2) and the executive officer of the National Skills Authority constitute the executive committee of the Authority, and must perform the functions that the Authority may assign to it.

(2) The National Skills Authority must establish an employment services committee to be chaired by a member contemplated in section 22(1)(g).

(3) The National Skills Authority may from its members establish any other committee to perform the functions that the Authority may assign to it.

Functions of National Skills Authority

27. In addition to the other functions referred to in this Act, the National Skills Authority must -

  1. comment on proposals made by the Director- General, and make recommendations to the Minister about –
    1. the formulation and revision of the national skills development strategy and priorities;
    2. guidelines and targets against which SETAs and ETBs must determine their targets and priorities;
  2. matters which may be prescribed;
  3. applications for registration by SETAs and associated ETBs;
  4. skills development policies;
  5. skills development financing policies and procedure; and
  6. such other matters as the Minister may request.
  7. convene at least two meetings per year with representatives of SETAs to enable them to make proposals on skills development policies and their implementation;
  8. co-operate with the South African Qualifications Authority to enable both authorities to achieve their objectives; and
  9. quarterly and annually report to the Minister on all expenditure by SETAs and ETBs, and on the progress made with education and training against the prescribed criteria.
  10. in the prescribed manner investigate any alleged irregularities committed by SETAs or ETBs.

Functions of Minister

28. In addition to the other functions referred to in this Act, the Minister must, after consultation with the National Skills Authority –

  1. determine a national long-term skills development strategy;
  2. determine skills development targets, policies and programmes to achieve the objectives of that strategy;
  3. determine target groups and special target group training programmes which may be supported from public funds;
  4. determine a national long-term employment services strategy;
  5. quarterly and annually report to Parliament on the progress made with the skills development strategy.

CHAPTER 9 – GENERAL PROVISIONS

Regulations

29. (1) The Minister may, after consultation with the National Skills Authority, make regulations relating to –

  1. any matter which may or must be prescribed in terms of this Act;
  2. any other matter that is necessary or expedient to achieve the objects of this Act.
  3. A regulation contemplated in subsection (1) may, for a contravention of it or a failure to comply with it, provide for a penalty of a fine or imprisonment for a period not exceeding three months.

Repeal of laws, and transitional provisions

30.(1) Subject to the other provisions of this section, the laws set out in the Schedule 1 are repealed to the extent specified in the third column of that Schedule.

(2) Anything done in terms of a law repealed by subsection(1), and which may be done in terms of this Act, is regarded as having been done in terms of this Act.

(4) Training Act, 1981, before the date of commencement of this Act and which immediately prior to that date was in force must after that date continue under that Act until such an agreement has been cancelled or terminated.

(5) Any apprenticeship certificate issued under a law repealed by subsection (1) is regarded to be a learnership certificate issued in terms of section 7 (d) of this Act.

(b) Regional Training Centres registered under a law repealed by subsection (1) and the Training Trusts specified in Schedule 2, are regarded as having been accredited as training providers under section 12(a) of this Act.

(7) Any grant-in-aid awarded under section 35 of the Manpower Training Act, 1981, continues in force for the period it was awarded.

(9)Training levies imposed under section 39 of the Manpower Training Act, 1981, prior to the date of commencement of this Act, remain in force in respect of the relevant industry until the day immediately prior to the date on which the Minister imposes a national levy under section 13 of this Act.

(10) Private employment offices registered in terms of section 15 of the Guidance and Placement Act, 1981 (Act No. 62 of 1981), are regarded as having been accredited as private Employment Services under section 4(b) of this Act.

Authorisation to perform functions

31. (1) The Minister may authorise the Director-General or any officer in the Department of Labour to perform any of his or her functions in terms of this Act, excluding the functions contemplated in sections 13(1)(a) and 29(1).

(2) The Director-General may authorise any officer in the Department of Labour to perform any of his of her functions in terms of this Act.

(3) The Minister or Director-General who has granted an authorisation under subsection (1) or (2), as the case may be, is not divested of the relevant function.

Definitions

32. In this Act, unless the context indicates otherwise -

"authorised body" means any body authorised by the Minister under section 9(2);

"Director-General" means the Director-General of Labour;

"employer" means any person, including the State, who -

  1. (a) employs, or provides work for, any other person and who remunerates or expressly or tacitly undertakes to remunerate that other person; or
  2. (b) permits any other person in any manner to assist him or her in carrying on or conducting his or her business for remuneration;

"employers’ organisation" means any number of employers associated for the purpose, whether by itself or with other purposes, of regulating relations between employers and employees or trade unions;

"Employment Service" means an Employment Service established or accredited in terms of section 4;

"ETB" means an Education and Training Board registered in terms of section 19;

"learnership" means any training programme contemplated in Chapter 4;

"Minister" means the Minister of Labour;

"National Skills Authority" means the National Skills Authority established by section 22;

"prescribed" means prescribed by regulation under section 29;

"SETA" means a Sector Education and Training Authority registered in terms of section 19;

"South African Qualifications Authority" means the South African Qualifications Authority established by the South African Qualifications Authority Act, 1995 (Act No. 58 of 1995);

"target groups" means the target groups determined in terms of section 28(c);

"this Act" includes the regulations made under section 29;

"trade union" means an association of employees whose principal purpose is to regulate relations between employees and employers;

"training provider" means any employer, person or body accredited to provide education or training as contemplated in this Act.

Short title and commencement

33. This Act is called the Skills Development Act, 1998, and comes into operation on a date fixed by the President by proclamation in the Government Gazette.

SCHEDULE 1

LAWS REPEALED (section 27(1))

Act No. Short Title Extent of repeal
56 of 1981 Manpower Training Act, 1981 The whole
62 of 1981 Guidance and Placement Act,1981 The whole
88 of 1982 Manpower Training Amendment Act,1982 The whole
1 of 1983 Manpower Training Amendment Act, 1983 The whole
39 of 1990 Manpower Training Amendment Act, 1990 The whole


SCHEDULE 2

TRAINING TRUSTS (section 27(6)(b))

Name Registration Number
1 Gazankulu Training Trust 89/05849/08
2 Regional Training Trust 93/06132/08
3 Venda Training Trust 94/0007
4 KwaZulu Training Trust 80/02076/08
5 Border-Kei Training Trust 94/0026/09