ESSENTIAL SERVICES DESIGNATIONS
& MINIMUM SERVICE AGREEMENT IN
THE PUBLIC & PRIVATE SECTOR
UNDER THE LRA AMENDMENTS
18 – 19 OCTOBER 2012
By Adv. Afzal Mosam
With acknowledgments to:
Dion Masher, Riaz Itzkin &
Muzi Khoza
Introduction
• DEFINITION
Section 213 of the LRA defines “essential service” as
follows:
"(a)
A service the interruption of which endangers
the life, personal safety or health of the whole or
any part of the population;
(b)
the Parliamentary service;
(c)
the South African Police Service."
Statutory Framework & Functions
• Section 70 of the LRA provides that the Minister of Labour
must establish an ESC under the auspices of the
Commission for Conciliation Mediation and Arbitration ("the
CCMA").
• FUNCTIONS OF THE ESC:
– Conduct investigations as to whether or not the whole or
part of any service is an essential service;
– To determine disputes as to whether or not the whole or
part of any service is an essential service;
– To conduct an investigation as to whether or not the
whole or a part of any service is an essential service.
Statutory Framework & Functions
cont.
BROADENING OF FUNCTIONS OF THE ESC UNDER THE
BILL:
– To appoint panels to assist the ESC in fulfilling its statutory
mandate, by:
• monitoring the implementation and observance of essential
service determinations and minimum service agreements;
• promoting effective dispute resolution in essential services;
• developing guidelines for the negotiation of minimum
service agreements;
• deciding whether to institute investigations as to whether or
not the whole or a part of any service is an essential service;
• managing the ESC’s case load and appointing panels to
hear and determine matters.
Statutory Framework & Functions
cont.
• INCREASING THE CAPACITY OF THE ESC:
– The chairperson or deputy chairperson of the ESC may
preside over a panel hearing. In addition, a presiding
member may be appointed from a list of senior
Commissioners that have been trained for this purpose.
– The ESC will not be required to actually preside over
disputes regarding whether or not a service is an
essential service, and instead, will be empowered to
appoint panels to do this.
– Establish a panel to hear and determine a matter if
requested to do so by a bargaining council, and may
request the CCMA or any other appropriate person to
conduct investigations or to assist the ESC in an
investigation, and to submit a report.
Appointment of ESC members
• The LRA currently gives the Minister the power to appoint
any number of persons to the ESC.
• The Bill introduces detailed criteria that the Minister must
take into account when appointing members of the ESC and
prescribes the number of persons who may be appointed to
the ESC.
• The Bill does not it limit the number of panels that the ESC
may appoint.
Appointment of ESC members cont
• The ESC is to consist of 8 persons, viz.
– an independent chairperson,
– a deputy chairperson who must be a senior commissioner
of the CCMA,
– 2 members nominated by government,
– 2 members nominated by labour, and
– 2 members nominated by business
• Other requirements include ESC members being South
African citizens with suitable qualifications or experience in
labour law, labour relations, commerce, industry or a sector
of the economy, public affairs or the administration of justice.
Jurisdiction of the ESC
• In terms of the LRA Amendment Bill, the ESC will have
jurisdiction throughout the Republic South Africa, while its
seat will remain at the CCMA’s head office in Johannesburg.
• The ESC will administered by the CCMA, and the Director of
the CCMA (“the Director”) will be the accounting officer of the
ESC for purposes of the Public Finance Management Act 1
of 1999.
• The ESC is to be financed through the budget allocated to
the CCMA.
Regulations by the Minister
• In terms of the Bill, the Minister will be empowered to make
regulations “concerning any matter related to the functioning
of the ESC and its panels”.
• This provision appears to be extremely broad, and it remains
to be seen how the Minister will exercise this power if the Bill
is adopted with this provision intact.
Public Officials exercising authority
in the name of the state
•
Section 71(A) of the Bill defines “Public Officials exercising authority
in the name of the state” as customs officials, immigration officers,
judicial officers and officials working in the administration of justice.
•
In terms of the Bill, these officials are deemed to be providing an
essential service once a specific procedure has been completed,
culminating in the determination of the minimum service required to
be maintained in that service.
•
Minimum service agreements that cover them must be ratified or
determined by the ESC.
•
Provisions are put in place that allow for the negotiation and
mediation of a minimum service agreement, and if no agreement
can be concluded, for the determination of the minimum services for
the maintenance of the services provided by these officials.
Minimum Service Agreements &
Determinations
• In terms of section 72 of the LRA as it currently stands, the
ESC may ratify any collective agreement that provides for the
maintenance of minimum services in a service designated as
an essential service, in which case the agreed minimum
services are to be regarded as an essential service in respect
of the employer and its employees.
• It is significant to that very few minimum service agreements
have been ratified by the ESC.
Minimum Service Agreements &
Determinations cont.
• The effect of the conclusion of a minimum service agreement
ratified by the ESC is that the agreed minimum services are
deemed essential and the remaining services are no longer
treated as part of the essential service.
• Employees who are prohibited from striking may benefit from
the outcome of the strike.
• These employees that are deemed essential are entitled to
refer the dispute to the CCMA, whilst the employees who are
not declared essential may persist in striking
See City of Cape Town v SALGBC & others (2011) 32 ILJ
1318 (LC)
Conclusion
• The amendments proposed in the Bill are, by and large, to be
welcomed.
• They are likely to assist in improving the capacity of the ESC
and in enhancing the legitimacy of its decisions, and on a
practical level, they will ensure that the ESC, as a statutory
body governed, inter alia, by the PFMA, is administered in an
effective and responsible manner.
• The proposals regarding minimum service determinations will
allow for the ESC to play a more involved role in striking the
delicate balance between the right to strike, and the
necessity of ensuring that our economy is not debilitated by
protected strike action.
thank you