COSATU Submission on the National Land Transport Transition Act Draft Regulations Presented to the Department of Transport, 14 December 2000

Table of Contents

Introduction

Comments on Document 1: Draft National Land Transport Regulations on Regulated Competition

Comments on Document 2: Draft Pro Forma agreement for Transport Authorities

Comments on Document 3: Draft National Land Transport Regulations on Registration

Introduction

COSATU welcomes the opportunity to comment on the Draft Regulations issued in terms of the National Land Transport Transition Act, as published in Government Notice R. 1140 ["the Draft Regulations"]. As indicated previously in correspondence with yourselves, due to the extremely short period allowed for public comment, the closing date for comment had already passed by the time the Draft Regulations reached us through the post. However, in subsequent discussions with Mrs Nothnagel of the Department of Transport it was agreed that COSATU would still be able to submit comments on the Draft Regulations as amendments would still be possible. We would appreciate it if you would appraise us in due course as to what amendments have been effected and further developments in this regard.

These comments should be read in conjunction with our submissions on the Draft National Land Transport Transition Bill and on the Bill itself, and our interactions in the parliamentary processing of the Bill. In these engagements we discussed the challenges and needs facing transport in South Africa, and motivated our belief that only through public transport provision can these needs be effectively met. We discussed our concerns that the Act would open the way for the privatisation and contracting out of municipal bus transport. In fact, we oppose a situation where municipal bus services are effectively forced into tendering for routes. While these concerns were not addressed to our satisfaction in the processing of the Act, assurances were given by the Department that this was not the intention nor the expected outcome of the Act, and elected representatives also committed themselves to a monitoring role in this regard. COSATU’s view remains that the state is best placed to deliver efficient and affordable transport services that meet commuters’ needs and contribute to national economic development. This submission, while commenting on the detail on the Draft Regulations, should be read in that light.




Comments on Document 1: Draft National Land Transport Regulations on Regulated Competition

Section 5 of the Schedule sets out additional requirements or qualifications for public transport operators to qualify as tenderers. COSATU proposes the addition of a new clause 5(1)(c) (with consequent re-lettering of existing clauses 5(1)(c) onwards) to read as follows:

5(1)(c) examine the employment records of the operator to ensure compliance with all statutory conditions of employment, including statutory deductions.

While noting the provisions of the current 5(1)(b)(iii) which provides for the examination of previous convictions for offences in terms of labour legislation or industry agreements, we believe that it is insufficient to rely simply on past actual convictions as these are rare. Transgressions of the BCEA and other labour laws are however common, especially in a highly competitive environment. It would be highly problematic to award government tenders for public transport services to companies which violate our labour legislation. It is for these reasons that we propose the addition as set out above.




Comments on Document 2: Draft Pro Forma agreement for Transport Authorities

3.1 Clause 5.1 of Document 2 stipulates that "the Governing Body must appoint a Chief Executive Officer (CEO) for the Transport Authority, who shall be employed on a full time basis on terms and conditions, and at remuneration, to be determined by the Governing Body." COSATU seeks clarity from the Department as to whether the appointment and conditions will be subject to approval by the full relevant council(s). This could be appropriate given the significance of the position as well as the vested interests that may be at stake.

3.2 Clause 8 deals with the transfer of staff from participating municipalities. COSATU proposes the insertion of a new clause 8.2(d) to read as follows:

8.2(d) Trade union membership and rights, if any, will be transferred to the Transport Authority, unless otherwise indicated by the employee.

3.3 Clause 16 deals with "Management in general", with clause 16.4 stipulating the relevant agencies with which the Transport Authority must liase "to ensure maximum success in achieving enforcement of applicable laws". COSATU proposes an additional clause 16.4(f) as follows:

16.4(f) the inspectors appointed by the Department of Labour.

3.4 Section 20 details the procedures to be followed in the event of a dispute. A "drafting note" at clause 20.11 raises the possibility of an arbitration procedure. COSATU believes that it may be helpful to build in the option for voluntary arbitration where parties are unable to reach settlement, before the issue goes to court.




Comments on Document 3: Draft National Land Transport Regulations on Registration

4.1 Clause 2 of the Schedule sets out the information to be derived from provincial transport registers for the National Transport Register. COSATU proposes the insertion of a new clause 2(2)(m) to read:

2(2)(m) the total number of employees employed by members per association;

4.2 We also propose an addition to the current clause 2(2)(m), inserting a new clause 2(2)(m)(vi) to read:

2(2)(m)(vi) the total number of employees employed by non-members;

4.3 Clause 4 deals with distinguishing marks for vehicles of provisionally registered and registered inter-provincial operators. The fine of maximum R1000 (stipulated at 4(10)(b)) seems to be very low for operating a commercial inter-provincial vehicle with a fraudulent distinguishing mark. This is unlikely to be a serious deterrent, therefore the amount should be increased.

4.4 Clauses 6 and 7 set out the minimum requirements for the constitution of association and minimum requirements for the Code of Conduct respectively. It is not clear from the wording of these clauses who is responsible for disciplining drivers for breaches of the Code of Conduct. Is it the employer or the Disciplinary Committee of the Transport Authority? There must be clear procedures that do not cut across labour rights i.e. the right to be represented by a trade union, the right of appeal and so on.

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